Citation Nr: 1313684 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-18 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to January 1953 and from January 1953 to May 1955. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied entitlement to a rating in excess of 30 percent for PTSD. The RO in Atlanta, Georgia currently has jurisdiction over the Veteran's claim. In January 2011, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In February 2011, the Board remanded this matter for further development. In August 2011, the Board denied the claim for a rating in excess of 30 percent for PTSD. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court set aside the Board's August 2011 decision and remanded the case for readjudication in compliance with directives specified in a June 2012 Joint Motion filed by counsel for the Veteran and VA. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant 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 Veteran if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). A February 2011 VA psychiatric outpatient treatment note reflects that the Veteran was scheduled for a follow up psychiatric evaluation in 4 months. Also, an April 2011 VA social work consultation note indicates that the Veteran continued to receive VA psychiatric treatment. The most recent VA treatment records in the claims file are contained in the Charleston Vista electronic records system and are dated to May 2011. There are no additional treatment records among the Veteran's paperless records in the Virtual VA system. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Moreover, if any additional treatment records reveal that the Veteran's service-connected psychiatric disability may have worsened since his most recent VA examination in May 2011, he should be afforded a new VA examination to assess the severity of the disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability contained in the Charleston Vista electronic records system from May 2011 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. If, and only if, any additional treatment records reflect that the Veteran's service-connected psychiatric disability may have worsened since his May 2011 VA examination, schedule him for a new VA psychiatric examination to assess the current severity of the disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. The examiner shall report the nature and severity of all signs and symptoms of the Veteran's service-connected psychiatric disability, describe the impact of the disability on his occupational and social functioning, and provide a Global Assessment of Functioning score. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ shall review any examination report to ensure that it contains the information requested in this remand and is otherwise complete. 4. If any benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall 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). _________________________________________________ J. A. MARKEY 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).