Citation Nr: 1311131 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-44 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1987 to February 1990 and from January 1991 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they include VA treatment records which are relevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board's review of the record reveals that further action on the claim is warranted. The Veteran was granted service connection for PTSD in April 2008 and assigned a 30 percent disability rating, effective date April 24, 2008. The Veteran described his in-service stressor event at length in a June 2008 statement. See 38 C.F.R. § 3.304(f) (service connection for PTSD requires a link between the current disability and an in-service stressor supported by credible evidence that the claimed stressor occurred). The Veteran explained that while stationed in Germany he was attacked by his Sergeant, who attempted to choke him until two fellow soldiers came to the Veteran's aid, saving his life. The Veteran's in-service stressor event was confirmed by his service treatment records. Id. The Veteran's service treatment records show that in July 1989 the Veteran was treated for multiple bruises to the head and face following an assault, and the Military Police were notified. The Veteran's records also indicate that in August 1987 the Veteran was assaulted while on guard duty, sustaining contusions and subconjunctival hemorrhage to the right eye. After the Veteran submitted a notice of disagreement with his initial 30 percent rating in August 2009, he was afforded a VA examination in August 2010. The examiner noted that the Veteran has difficulty expressing his feelings, can be short-tempered, is anxious in social settings, and is prone to hypervigilance, exaggerated startle response, and outbursts of anger. The Veteran reported that he had difficulty relating to his wife, had no close friends, and no longer took interest in his hobbies. The examiner also, however, stated that the Veteran had "severe sleep disturbance due to combat-related nightmares" and that he was optimistic that the Veteran would "begin to acquire the peace of mind that has eluded him since seeing combat in Iraq." The examination report contains no references at all to the Veteran's confirmed stressor, the physical assault he experienced while in the service. Moreover, the stressor in combat is not set out. While the examiner also noted that the claims file had been reviewed, it is apparent from the examination report that the examiner was under a misimpression regarding the Veteran's history, and the examination report is therefore of questionable value with regards to the evaluation of the Veteran's current appropriate disability evaluation. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate, such as the Veteran's self-reported and inaccurate history). Interestingly, some outpatient records make reference to combat trauma. Again, the particular stressors are not set out. Furthermore, there appears to be no evidence within the Veteran's personnel or service treatment records indicating that the Veteran has served in combat or has ever been stationed in or near Iraq. He was called up in support of overseas operations, but it is not demonstrated that he was in combat. A new VA examination is therefore necessary to determine the current severity of his service-connected PTSD that is based on an accurate awareness of the Veteran's verified stressor and documented service and medical history. The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, may well result in denial of the claim (as the original claim will be considered on the basis of evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO/AMC must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. The record also indicates that the Veteran has been receiving regular and frequent individual therapy and other psychiatric treatment from the VA Hudson Valley Health Care System in Montrose, New York. However, the claims file contains only his VA treatment records from June 2007 to August 2008, September 2009 to September 2010, and two records from March 2012. As these treatment records may be directly pertinent to the current issue, all outstanding VA treatment records from the Hudson Valley Health Care System should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. It is noted that the supplemental statement of the case (SSOC) noted that additional records were reviewed. They are not before the Board, only a March 2012 record is in Virtual VA, other records must be obtained either electronically or by hard copy. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the VA Hudson Valley Health Care System in Montrose, New York all outstanding, pertinent records of psychiatric treatment of the Veteran from August 2008 to September 2009 and from September 2010 to the present. Records reviewed by the RO in SSOC must be included in the record. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records received should be associated with the claims file. 2. After the above development has been completed, schedule the Veteran for a VA examination to determine the severity of his service-connected PTSD in light of the Veteran's verified stressor and documented service and medical history. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. The examination report should note that review, including some discussion of what documents pertaining to the Veteran's service and medical history have been specifically reviewed. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. The examiner should specifically provide a full multi-axial diagnosis pursuant to DSM-IV, to include a GAF score related to the Veteran's PTSD. All signs and symptoms of any psychiatric disability should be reported in detail. The examiner should describe the impact of the Veteran's PTSD on his occupational and social functioning, and should discuss the impact PTSD has on his activities of daily living, including his ability to obtain and maintain employment, and overall functional impact. See 38 C.F.R. § 4.10 (2012). If there are reports of combat trauma, the pertinent history should be recorded, including time and place of events. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. The RO/AMC must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The RO/AMC must ensure that all additional requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Following the completion of the above, the RO/AMC should review the evidence and determine whether the claim may be granted. If not, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL D. LYON 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).