Citation Nr: 1312925 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-48 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) with major depression. REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to March 1970 and from March to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008, December 2008, and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which ultimately granted service connection for PTSD with major depression and assigned a 30 percent disability rating, effective January 24, 2008, the date the claim for service connection was received. In March 2009, the Veteran submitted a statement indicating that his service-connected PTSD with major depression had worsened. As this statement was received within 1 year of the December 2008 rating decision granted service connection for PTSD with major depression and assigned an initial 30 percent disability rating for the same, and new and material evidence was subsequently received during that one year period in the form of treatment records, the Board has phrased the issue on appeal as a claim for an increased initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was scheduled to present testimony before a Veterans Law Judge during a Videoconference hearing in October 2011, however, the Veteran failed to report to the hearing. Documentation in the claims file indicates that the case was held for seven days to await documentation concerning rescheduling. To date, there is no indication in the paper or electronic claims files that such has been received. As neither the Veteran nor his attorney have presented good cause for the Veteran's failure to report or submitted rescheduling documentation to date, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704. A review of the Veteran's Virtual VA electronic claims file is negative for any additional information or evidence pertinent to the claim 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 finds that further development is necessary prior to final adjudication of the issue on appeal. The Veteran and his attorney essentially contend that the 30 percent disability rating currently assigned for the Veteran's service-connected PTSD with major depression is not reflective of severity of symptoms associated with that disability, which reportedly have progressively worsened. In a June 2010 statement, the Veteran's attorney indicated that the intensity of the Veteran's psychiatric symptoms and/or side effects of medications used for treatment of such, were not considered in the assignment of the 30 percent disability rating currently in effect. In the November 2010 substantive appeal (VA Form 9), the Veteran's attorney contended that the Veteran's worsening psychiatric condition had not been considered. On review, the Board notes that the Veteran's service-connected PTSD with major depression was most recently evaluated during a May 2009 VA examination, nearly four years ago. The aforementioned statements suggest that the claimed disability may have worsened since the May 2009 VA examination. Under these circumstances, an additional VA examination is needed. See 38 C.F.R. § 3.159(c)(4). The Board also observes that during a November 2009 VA psychiatric examination, the Veteran indicated that he had been unemployed since 1994 due to a medical or physical condition. It was noted that he is in receipt of disability benefits from the Social Security Administration (SSA). There is no indication that records pertaining to a claim for disability benefits have been requested from the SSA. As these records are relevant to the claim on appeal in that they likely contain relevant information concerning the cause of the Veteran's reported unemployment and/or employability, such records must be requested and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363, 370- 372 (1992) (concluding VA has a duty to obtain SSA records when it has actual notice that the Veteran was receiving SSA benefits). Additionally, prior to the examination, in order to ensure that the most complete and up-to-date evidence has been obtained, the Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for any psychiatric disorder since January 2007. VA must then make efforts to obtain any treatment records identified that have not been obtained. 38 C.F.R. § 3.159. The RO/AMC should also take this opportunity to associate with the claims file the Veteran's VA treatment records, if any, dating since October 2010. Accordingly, the case is REMANDED for the following action: 1. Seek the Veteran's assistance in identifying and obtaining any outstanding medical and psychiatric treatment records of pertinent VA and private treatment dating since January 2007. Also obtain any relevant VA medical and psychiatric treatment records dating since October 2010 from the VA Medical Center in Memphis, Tennessee. All efforts to obtain records of any treatment identified by the Veteran should be documented in the claims file and any records obtained should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his attorney are to be notified of unsuccessful efforts in this regard, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Contact the SSA and request any records from that agency that pertain to any claim for benefits filed by the Veteran, to include copies of any examinations arranged by that agency, and any decisions rendered with respect to the Veteran. All efforts to obtain records from the SSA, to include any negative response, should be documented in the claims file. 3. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination to determine all manifestations and residuals associated with his service-connected PTSD with major depression, and the severity of any such manifestations and residuals, to include the side effects of any medication(s) used for treatment of the claimed disability. The claims folder, to include any relevant records contained in Virtual VA, must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All appropriate tests and studies should be performed, to include an interview and a comprehensive mental status examination. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations of the Veteran's service-connected PTSD with major depression and discuss the impact of such symptoms on his daily activities and social and occupational functioning. A Global Assessment of Functioning (GAF) score should be assigned, and the examiner should explain the basis for the assigned score. To the extent possible, the examiner should discuss any effects, due to both psychiatric symptoms and manifestations of the claimed disability and medication(s) used to treatment of the Veteran's PTSD with major depression on his ability to obtain or retain substantially gainful employment. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's and his attorney's satisfaction, issue a supplemental statement of the case, and afford the Veteran and his attorney an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. 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). 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 LANE 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).