Citation Nr: 1317922 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-37 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) from August 22, 2008. 2. Entitlement to a disability rating in excess of 30 percent for PTSD from February 14, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which, inter alia, increased the disability rating for the Veteran's PTSD from noncompensable to 10 percent effective August 22, 2008. In September 2012, the RO increased the disability rating for the Veteran's PTSD from 10 percent to 30 percent effective February 14, 2012. As the currently-assigned ratings do not represent the highest possible benefit for the Veteran's PTSD, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran participated in a hearing before the undersigned at the VA RO in March 2013, and a transcript of this hearing has been associated with the record. The following issues have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ): 1. Service connection for bilateral hearing loss 2. Service connection for bilateral tinnitus 3. Increased rating for a left wrist condition 4. Whether there was clear and unmistakable error (CUE) in a rating decision dated December 17, 1969 regarding the evaluation of the Veteran's residuals of a gunshot wound (GSW) 5. Whether there was CUE in a rating decision dated November 12, 2008, which continued a noncompensable evaluation for scarring associated with the Veteran's GSW 6. Total disability rating based on individual unemployability due to service-connected disability Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on his part is required. REMAND The Veteran's claim must be remanded for further development. Although the Board regrets the delay, this remand is necessary to ensure due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Board observes that 229 pages of VA treatment records from December 2012 to April 2013 were uploaded to the Veteran's Virtual VA electronic file on May 1, 2013. These records, which are pertinent to the Veteran's claim for an increased rating for PTSD, have not been reviewed by the AOJ in the first instance. Furthermore, the Veteran testified at his March 2013 hearing before the undersigned that he received psychiatric treatment every "couple months" and attended biweekly anger management classes. The Board notes that the record contains no VA treatment records from August 2009 through December 2012. These records, along with all pertinent records from April 2013 through the present, must be obtained on remand. Additionally, the Board observes that the present level of disability is of primary concern when entitlement to compensation has already been established and an increase in the disability rating is at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). While a new VA examination is not warranted based solely upon the passage of time, VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Turning to the facts in the instant case, the Veteran last received a psychiatric examination in February 2012. During this examination, the Veteran denied experiencing symptoms associated with obsessions or compulsions, and his memory was adequate. During his March 2013 hearing before the undersigned, however, the Veteran indicated that his treating psychiatrist had recently recommended that he participate in biweekly anger management classes as a result of the Veteran experiencing explosive episodes of anger. The Veteran complained of problems with his memory, and the Veteran and his spouse indicated that the Veteran may have experienced hallucinations. The Veteran further indicated that he felt "very paranoid" all the time, more than he used to, and he conducted perimeter checks around the house "all the time." The Veteran's testimony suggests that the symptoms associated with his PTSD may have worsened. Accordingly, an additional examination should be obtained on remand that fully addresses the current manifestations of the Veteran's PTSD. Accordingly, the case is REMANDED for the following actions: 1. All records relating to the Veteran's treatment for PTSD that are not currently of record should be added to the record. These records include, but are not limited to, records relating to treatment from August 2009 to December 2012, and records from April 2013 to the present. 2. Then, schedule the Veteran for a VA mental disorders examination to determine the current severity of the Veteran's PTSD. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the Veteran's claims file, including the Veteran's statements, the examiner must describe the nature, current severity, and all symptoms associated with the Veteran's PTSD, to include specific discussion of the effect of PTSD on the Veteran's employability. 3. Then, readjudicate the Veteran's claim, giving due consideration to the treatment records that are added to the record. If the claim is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 (CONTINUED ON NEXT PAGE) handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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. See 38 C.F.R. § 20.1100(b) (2012).