Citation Nr: 1314616 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-14 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy, including as due to herbicide exposure. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: T. Rhett Smith, Attorney at Law ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1972. The matter pertaining to peripheral neuropathy comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision, which found that no new and material evidence had been received to reopen the claim. A notice of disagreement was received in December 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in April 2009. The matter regarding the rating for PTSD comes to the Board on appeal from a March 2011 rating decision, which granted service connection and assigned a 30 percent rating for PTSD. A notice of disagreement was received in May 2011, a statement of the case was issued in October 2012, and a substantive appeal was received in December 2012. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Regarding the request to reopen the claim of service connection for peripheral neuropathy, the most recent supplemental SOC was issued in December 2010. Since then, a substantial amount of evidence has been received. The newly received evidence includes Social Security Administration (SSA) records as well as all VA treatment records through October 2012. This evidence also includes a May 2009 VA Agent Orange Registry Examination performed at the Pensacola VA Medical Center, which took place after the March 2009 SOC was issued and does not appear to have been reviewed prior to the issuance of either the March 2010 or December 2010 supplemental SOCs. A review of the claims file (including Virtual VA) reveals that no supplemental statement of the case has been issued since December 2010, indicating that these records have not been considered by the RO. Accordingly, the matter must be remanded for RO review of the new submissions. See Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Regarding the claim for an increased rating for PTSD, the Board finds the July 2011 and September 2012 VA examinations to be inadequate. The July 2011 examination report endorses every single potential criterion, sign and symptom listed for PTSD, including a finding of total occupational and social impairment by the Veteran's report, with no evidence of any objective examination performed or opinion offered; indeed, the examiner noted that all cited findings were based on the Veteran's subjective report only. Despite the notations of total impairment due to every possible PTSD symptom on every level of severity, the examiner assigned a GAF score of 41-50. The Board finds this examination to be internally inconsistent and wholly inadequate. Additionally the September 2012 examination, performed by the same practitioner as the July 2011 VA examination, includes a notation that the Veteran's indicated level of occupational and social impairment is speculative due to the results of objective testing in the current exam and the absence of neutral third-party corroboration of the Veteran's reported functional impairment in his claims file. However, the claims file contains numerous VA mental health treatment records, including from the months immediately preceding and following the September 2012 examination. The examiner opined that the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms (noted to include only anxiety and chronic sleep impairment), or symptoms controlled by medication, and assigned a GAF score of 75, which is in stark contrast to the findings on the treatment records during that same time frame which reflect moderately severe PTSD symptoms and GAF scores of 50. The Board therefore finds the September 2012 VA examination to be inadequate as well. On remand, the Veteran should be afforded another VA psychiatric examination by a new examiner to determine the current severity of his service-connected PTSD. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The TDIU issue is intertwined with the other two issues and is hereby deferred. Accordingly, the case is REMANDED for the following action: 1. The RO should review the claims file (to specifically include consideration of the additional evidence received since the December 2010 supplemental statement of the case), and undertake any further development of the claim pertaining to peripheral neuropathy that may be indicated by the additional evidence received, including affording the Veteran a new VA examination or medical opinion as necessary. 2. The Veteran should be scheduled for an appropriate VA examination - by a different examiner than the examiner who performed the July 2011 and September 2012 examinations - to determine the current severity of his PTSD. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. Examination findings should be reported to allow for evaluation of PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. A GAF score should be reported. The examiner should also offer an opinion as to whether the Veteran's PTSD precludes substantially gainful employment. 3. After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the claims. The Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded an 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ ALAN S. PEEVY 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).