Citation Nr: 1314329 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-49 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased initial disability rating for posttraumatic stress disorder (PTSD), currently rated 30 percent disabling. ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from October 2002 to October 2006. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 RO rating decision. A notice of disagreement was received in August 2010. A statement of the case was issued in December 2010, and a substantive appeal was received in December 2010. 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 only VA psychiatric examination performed in connection with this appeal had been the July 2009 VA examination report associated with the original claim of entitlement to service connection for PTSD. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Under the circumstances of this case, the Board finds that another VA examination is appropriate. The July 2009 VA examination report indicates, among many findings, that the Veteran "denies any suicidal ideation at present and [reports] that [a suicide] attempt in April was his only one and was influenced by alcohol." Significantly, the Veteran's substantive appeal submission in December 2010 gave an updated account of his PTSD symptomatology including, in pertinent part, stating that "I have a lot of suicidal thoughts." This assertion speaks to a specific element of the rating criteria for the PTSD disability at issue. In light of this and other information suggesting that the Veteran's reported PTSD symptoms may have become more severe in the now nearly four years since his last VA psychiatric examination in this appeal, the Board believes that a new VA psychiatric examination is warranted for an updated picture of the pertinent symptomatology. As it stands, there is no medical evidence concerning the Veteran's PTSD symptoms pertaining to the past several years. The Board observes that the Veteran's contentions in this appeal include statements indicating his belief that his documented "alcohol dependence" and "compulsive gambling" behaviors (noted in psychiatric records including in the July 2009 VA examination report) should be considered part of his service-connected PTSD pathology on appeal. It is unclear whether these aspects of the Veteran's psychiatric contentions are best characterized as symptoms of a psychiatric disability or distinct diagnoses themselves; the Board does observe that both are referenced in the Axis I diagnosis section of the July 2009 VA examination report. The Veteran's contentions in this regard should be addressed by the new VA examination report, to include a clear discussion as to whether the Veteran's alcohol dependence and compulsive gambling are symptoms or distinct psychiatric diagnoses. Any psychiatric symptoms found in the Veteran which cannot be clearly distinguished from his service-connected pathology should be considered in assigning a disability rating. The Board notes the holding in Mittleider v. West, 11 Vet. App. 181 (1998), wherein the Court held that when it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the appellant's service-connected disability. The Board further notes that the Veteran's contentions regarding his alcohol dependence and gambling compulsion have been made during the pendency of this appeal arising from a claim of service connection for psychiatric disability. If these elements are determined to be psychiatric diagnoses then, in light of the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that [VA] obtains in support of that claim") the RO should make a determination as to whether service connection is warranted for each diagnosis, to include as secondary to service-connected PTSD. The RO's determinations should be addressed clearly in a rating decision or supplemental statement of the case as appropriate. Documentation of record indicates that the Veteran's former representative in this appeal withdrew from representing the Veteran in December 2010 because they had lost contact with the Veteran sometime prior. VA treatment reports indicate that the Veteran was receiving some degree of mental health treatment from VA providers until approximately October 2009 when he fell out of contact; treating VA professionals remained unable to contact the Veteran in December 2010. Significantly, however, other documentation in the claims-file appears to somewhat explain the Veteran's disappearance from contact with his former representative and mental health treatment providers: documentation in the claims file indicates that the Veteran was incarcerated around the time of the loss of contact. A September 2010 Report of Incarceration form shows that the Veteran was expected to be released no earlier than November 2010 and no later than November 2011. Under the circumstances, the Board finds that it is appropriate for the RO/AMC to take action to attempt to reestablish contact with the Veteran, perhaps through the family member that has been appointed as his fiduciary for VA compensation benefits purposes. As the Veteran is currently without the assistance of a representative (apparently as a result of a loss of contact around the time of his incarceration), the RO/AMC should attempt to provide the Veteran with information regarding available representation and the steps he may take to appoint a new representative to assist him (if he so desires). The Board also observes that it is not entirely clear from the information available in the record if the Veteran has resumed his pertinent mental health treatment at VA facilities; the Board notes that the Veteran's statement in his August 2010 notice of disagreement (during incarceration) expressed a desire to resume his PTSD treatment after his release. The claims-file currently contains no VA treatment records following release from incarceration and no indication as to whether such records have been sought. The Board observes that the Veteran's claims-file was received at the Board in May 2011 and appears to have been delayed for some time in processing; it does not appear that the RO/AMC will have had an opportunity to obtain any recent VA treatment records. Recent VA treatment records could be highly pertinent to this appeal. As VA medical records are constructively of record and must be obtained, the RO should obtain outstanding VA treatment records (from the date of the last complete update of the claims-file's set of VA medical records through the present). See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take action to attempt to reestablish contact with the Veteran (following the loss of contact apparently attributable to his incarceration), perhaps through the family member that has been appointed as his fiduciary for VA compensation benefits purposes. As the Veteran is currently without the assistance of a representative (apparently as a result of a loss of contact around the time of his incarceration), the RO/AMC should attempt to provide the Veteran with information regarding available representation and the steps he may take to appoint a new representative to assist him (if he so desires). 2. The RO/AMC should make arrangements to obtain all outstanding (not already contained in the claims-file) VA psychiatric/medical records created since the date of the last complete update of the claims-file's set of such records. 3. The RO/AMC should schedule the Veteran for a VA psychiatric examination for the purpose of determining the current severity of his service-connected psychiatric disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Examination findings should be reported to allow for application of VA rating criteria for psychiatric disability. A GAF score should be assigned for the service-connected psychiatric disability and some rationale or discussion of the basis for assigning such score should be furnished by the examiner. In addition to the above, the examiner is asked to specifically discuss the Veteran's contention that his alcohol dependence and compulsive gambling behaviors are part of his service-connected pathology (either part and parcel, or secondary consequences, of that pathology). In this regard, the examiner is asked to: a) Please specifically determine and explain whether the Veteran's alcohol dependence is a symptom of an identified psychiatric diagnosis or, alternatively, constitutes its own distinct psychiatric diagnosis. b) If alcohol dependence is determined to be a symptom of an identified psychiatric diagnosis, please specifically state and explain whether this symptom is part of the Veteran's service-connected psychiatric pathology featuring PTSD. c) If alcohol dependence is determined to be a distinct psychiatric diagnosis, please specifically state and explain whether this diagnosis is at least as likely as not caused or permanently aggravated by the Veteran's military service or his service-connected psychiatric pathology. d) Please specifically determine and explain whether the Veteran's compulsive gambling is a symptom of an identified psychiatric diagnosis or, alternatively, constitutes its own distinct psychiatric diagnosis. e) If compulsive gambling is determined to be a symptom of an identified psychiatric diagnosis, please specifically state and explain whether this symptom is part of the Veteran's service-connected psychiatric pathology featuring PTSD. f) If compulsive gambling is determined to be a distinct psychiatric diagnosis, please specifically state and explain whether this diagnosis is at least as likely as not caused or permanently aggravated by the Veteran's military service or his service-connected psychiatric pathology. Please offer a rationale for the conclusions drawn. 4. After completion of the above and any additional development which the RO/AMC may deem necessary, the RO/AMC should then review the expanded record and readjudicate the appeal. In so doing, the RO/AMC should make a clear determination as to whether the Veteran's claimed "alcohol dependence" and "compulsive gambling" are part of his service-connected psychiatric pathology on any basis (as symptoms or as diagnoses contemplated in the service connection claim which led to this appeal). The RO/AMC should issue an appropriate supplemental statement of the case, and give the Veteran and his representative (if any) the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 MARTIN 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).