Citation Nr: 1310232 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-11 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder, currently evaluated as 50 percent disabling. 2. Entitlement to an increased rating for residuals of prostate cancer, currently evaluated as 20 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Robert Goss, Attorney WITNESSES AT HEARING ON APPEAL Appellant and D. C. ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue of entitlement to special monthly compensation based on the need for aid and attendance has been raised by the record, but has not been developed for appellate review. Therefore, this issue is referred to the RO for appropriate disposition. The appeal is remanded to the RO. REMAND VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran was most recently afforded VA examinations in conjunction with his claims for increased ratings for posttraumatic stress disorder (PTSD) and residuals of prostate cancer in November 2008. VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). In December 2012 hearing testimony and written argument submitted to the Board, the Veteran contends that his disabilities have become more disabling than previously rated. With respect to his PTSD, the Veteran reports that his symptoms include severe anger outbursts, visual hallucinations and an inability to maintain personal hygiene. With respect to his prostate disability, he reports continual urine leakage and wearing of absorbent materials which must be changed more than four times a day. Accordingly, the Board finds that additional VA examinations are needed to provide a current picture of the Veteran's service-connected disabilities. Also, the Veteran testified that he receives treatment for his disorders from a private physician, C. L., M.D. On remand, VA must obtain relevant treatment records from this physician. The Board notes that the claim for entitlement to a total disability rating based upon individual unemployability (TDIU) is inextricably intertwined with the claims for higher ratings. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, a remand is required regarding TDIU for readjudication after the intertwined issues on appeal have been developed and adjudicated Accordingly, the case is remanded for the following action: 1. The Veteran must be contacted and afforded the opportunity to identify or submit any additional pertinent evidence in support of his claims to include any VA or non-VA treatment records. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain all relevant medical records from Dr. C. L. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must provide the Veteran with a VA psychiatric examination to determine the severity of his PTSD. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must provide accurate and fully descriptive assessment of all psychiatric symptoms. The examiner must comment upon the presence or absence, and the frequency or severity of the following symptoms due to PTSD: flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory, such retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation or mood; suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The examiner must enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The report must be typed. 3. The Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected residuals of prostate cancer. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that he claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must provide an accurate and fully descriptive assessment of the Veteran's prostate disability. The examiner must specifically document all objective physiological problems related to the Veteran's prostate disability, to include renal dysfunction, voiding dysfunction, infections, and hypertrophy, if any. Any and all findings concerning urine leakage, frequency, or obstructive voiding, to include continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence requiring the use of an appliance or the wearing of absorbent materials, must be documented. The examiner must then provide an opinion as to whether the objective findings are consistent with the Veteran's subjective complaints. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include a denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Each examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If an examination report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claims on appeal. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).