Citation Nr: 1313744 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-11 251 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1968 and from March 1971 to June 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by which the RO granted entitlement to service connection for PTSD. The Veteran is contesting the initial 30 percent evaluation assigned. In September 2012, the Board remanded this matter to the RO for further development of the evidence. The issue of entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability has been raised by the record (see November 2012 statement of the Veteran), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 A remand is required in this case to ensure that there is a complete record upon which to decide the issue of entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD, so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In its September 2012 remand, the Board asked that the Veteran be contacted regarding names and addresses of mental health treatment providers and to assist the Veteran in obtaining the identified records. Next, in addition to a VA psychiatric examination, the Board asked that the claim be readjudicated and that a supplemental statement of the case be issued that was to include, in pertinent part, a summary of all of the evidence. In November 2012, the Veteran submitted private mental health treatment notes. The RO/AMC issued a supplemental statement of the case in February 2013 but failed to list the evidence submitted by the Veteran in the "Evidence" section of the document and failed to discuss the private treatment notes in the body of its "Reasons and Bases" discussion. Because the RO/AMC did not consider the newly submitted evidence, a remand for initial RO consideration is required. See 38 C.F.R. § 20.1304(c) (2012). In any event, the RO's failure to consider the newly submitted evidence is in contravention of the Board remand directives, and a remand for corrective action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that the Board errs as a matter of law when it fails to ensure compliance with a remand). As well, in the September 2010 remand, the Board asked that the RO/AMC schedule a VA mental health examination to determine the current severity of the Veteran's PTSD. The examiner was asked to review the claims file and to list the relevant psychiatric symptomatology. The Board notes that the VA examiner did not have the opportunity to review all of the evidence of record, as the private medical evidence submitted by the Veteran arrived a day after the VA examination was conducted. The Veteran was not late in submitting the new evidence. Pursuant to the Board's September 2012 remand, the RO sent a letter to the Veteran dated November 1, 2012 asking that he submit the requested information within 30 days. He did. Indeed, the private records he submitted arrived November 27, 2012. The VA examination took place November 26, 2012. Thus, the VA examiner could not review all of the pertinent evidence of review, which is a violation of the Board's remand directive. Corrective action is required. See Id. As well, further detail is required regarding the November 2012 VA examination report. The record contains a May 2009 private psychological examination report that reflects a global assessment of functioning score (GAF) of 38. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32). GAF scores of 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). See 38 C.F.R. § 4.130 (2012) (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). On VA examination in September 2009, a VA examiner questioned the validity of the May 2009 private report. The Board notes, however, that the private report along with treatment notes from the same provider that the Veteran submitted in November 2012, which are dated from April 2009 to August 2012, do not contain any indication of suicidal ideation. Similarly, the September 2009 VA examiner did not note any suicidal ideation. Finally, the Veteran has not reported suicidal ideation in any of his communications to VA. On November 2012 VA mental health examination, the examiner assigned a GAF score of 60, which reflects more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The November 2012 VA examiner also assessed the Veteran's mental health disability picture as consisting of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation. Curiously, therefore, when checking off the relevant symptomatology on the examination form, the examiner indicated suicidal ideation. However, suicidal ideation, generally speaking, is inconsistent with the GAF score of 60 as well as with the occupational and social impairment level assessed by this examiner. Thus, the Board is of the belief that the assessment of suicidal ideation is in error. Thus, clarification from the November 2012 VA examiner is necessary. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the November 2012 VA examination is not adequate because it is not based on the entirety of the evidence and because it mentions symptomatology that is inconsistent with the rest of the record. Thus, the November 2012 VA examiner must review the additional medical evidence associated with the claims file and explain whether the Veteran suffers from suicidal ideation. If so, that conclusion must be substantiated and the extent of suicidal ideation must be determined. In the event that the November 2012 VA examiner is not available, a new VA psychiatric examination must be scheduled as indicated below. To ensure that the record is complete, VA clinical records dated from August 2009 to the present must be added to the record. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the claims file all VA clinical records dated from August 2009 to the present. 2. After accomplishing the foregoing directive, contact the VA examiner who authored the November 2012 VA examination report. Ask that VA examiner to review all pertinent documents in the claims file to include the private treatment records submitted by the Veteran in November 2012 and all newly associated VA clinical records. Next, the examiner should assess the current severity of the Veteran's service-connected psychiatric disorder, to include the appropriate GAF score and an assessment of the Veteran's occupational and social impairment. Thereafter, the examiner should indicate whether the Veteran suffers from suicidal ideation. If so, the severity of suicidal ideation should be discussed, to include frequency of such thoughts, history of attempts, and whether the Veteran indeed has a plan or mere fleeting suicidal thoughts that do not include actual plan or intent. In connection with the examination, all pertinent documents in the claims file should be reviewed, and the examiner must indicate whether such review took place. A rationale for the examiner's opinions and conclusions should be provided. 3. In the event that the November 2012 VA examiner is unavailable, schedule a VA mental health examination with an appropriate specialist in order to determine the nature and severity of the Veteran's service-connected acquired psychiatric disorder. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. In the event that suicidal ideation is found, frequency of such thoughts, history of attempts, and whether the Veteran indeed has a plan or mere fleeting suicidal thoughts that do not include actual plan or intent should be discussed. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints should be recorded in full. As part of the evaluation, the examiner is requested to assign a GAF score. 4. Readjudicate the issue on appeal. If any benefit requested remains unfavorable to the Veteran, issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, 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 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). _________________________________________________ MARK W. GREENSTREET 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).