Citation Nr: 1319057 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-41 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to September 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for PTSD, rated 30 percent, effective December 2, 2008. The Veteran's claims file is now in the jurisdiction of the Nashville, Tennessee RO. For the purposes of clarity, the Board finds that some explanation is necessary to address the Veteran's representation. In October 2010, the Veteran submitted a VA Form 21-22 identifying Disabled American Veterans as his representative. In July 2011, a VA Form 21-22a identified Stephen Vaughn, Agent, from Alpha Veterans Disability Advocates, with accompanying correspondence, as the Veteran's representative solely for his appeal for an increased rating for PTSD, and Disabled American Veterans as his representative for all other issues. Additional correspondence was received from Disabled American Veterans addressing the Veteran's claim for an increased rating for PTSD in May 2013. However, there has been no revised VA Form 21-22a or any correspondence from the Veteran conveying any desire to appoint a new representative other than Alpha Veterans Disability Advocates for his claim for an increased rating for PTSD. The Veteran's representation has been characterized in accordance with the facts above. Additionally, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they 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 appellant if further action is required. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for an increased initial rating in excess of 30 percent for PTSD. The Veteran was last afforded a VA examination in February 2009, over four years ago. Notably, in August 2011 correspondence from C.A.D., the Veteran's spouse, it was related that the Veteran was suicidal and directed homicidal threats at her. Moreover, September 2011 correspondence from the Veteran's representative suggests that his PTSD has worsened in severity since the prior VA examination. When available evidence is too old for an adequate evaluation of the Veteran's condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Because there may have been changes in the Veteran's condition, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequate reveal current state of disability, fulfillment of the duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board also notes that in May 2012, the Veteran submitted two VA Form 21-4142's. However, no dates of treatment or the condition for which the treatment is relevant were identified. Hence, it is unclear if such records are relevant to the Veteran's claim. Additionally, while the record reflects that Veteran is in receipt of Social Security Administration (SSA) benefits, the Veteran has related that he is receiving SSA disability benefits due to lumbar disease. He has not indicated, and the record does not otherwise suggest, that he receives SSA disability benefits for a psychiatric disability. Accordingly, VA does not have an obligation to obtain any SSA records with respect to his appeal. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (noting that the duty to assist includes obtaining relevant records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all VA and private health care providers, including Dr. Hal Barnes and Dr. Sheldon Cohn identified in May 2012 VA Form 21-4142's, who have treated him for his PTSD. After securing any necessary releases, the RO/AMC should request any relevant records identified, to include from Dr. Hal Barnes and Dr. Sheldon Cohn. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. Obtain mental health VA treatment records dated since November 2009 from the Nashville VA Medical Center and associated clinics. 3. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his PTSD. The examiner must review the claims file in conjunction with the examination. The examination report should include a detailed account of all psychiatric pathology found to be present as well as a mental status examination. All tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's service-connected PTSD and indicate the impact of his PTSD on occupational and social functioning. 4. After the development requested above, and any additional development deemed necessary, has been completed to the extent possible, the record should be reviewed and the claim readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant 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). _________________________________________________ K. A. BANFIELD 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).