Citation Nr: 1319436 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-22 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: David W. Glasser, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted service connection for PTSD and assigned an initial disability rating of 50 percent. In May 2010 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the Board's central office in Washington, D.C. A transcript of the hearing is associated with the claims file. The Board issued a decision in July 2010 that denied the claim for increased initial rating. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which issued in Order in June 2011 that granted a Joint Motion of the Parties to vacate the Board's decision and return the case to the Board for further development. The Board remanded the case back to the Originating Agency in April 2012 for development action as required by the Court's Order. The file has now been returned to the Board for further appellate review. The appeal is again REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND The Board's remand required the Originating Agency to obtain the Veteran's Social Security Administration (SSA) disability records and to then readjudicate the claim. The RO thereupon obtained the Veteran's SSA file and readjudicated the claim by issuing a Supplemental Statement of the Case (SSOC) in January 2013 that continued the previous denial. The Veteran's representative submitted a letter in February 2013 responding to the SSOC. The letter, sent by facsimile (fax) to the RO, purportedly enclosed a letter from the Veteran's attending psychologist that describes the Veteran's level of disability and assigned a Global Assessment of Functioning (GAF) of 35. The psychologist's letter is not associated with the claims file or with Virtual VA, and should accordingly be obtained before the appeal is adjudicated. The document, when obtained, must be considered in the first instance by the RO before it can be reviewed by the Board. See 38 C.F.R. § 19.37; see also Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.2003). The Veteran's last VA examination of record was performed in September 2009, at which time the Veteran's GAF was 60. Whereas the Veteran has apparently been recently assigned a GAF of 35 by a psychologist, an argument is raised that the Veteran's disability has changed significantly since the last examination. Accordingly, a new VA examination is appropriate. 38 C.F.R. § 3.159(c)(4). Prior to examination, the RO should obtain any outstanding VA and private treatment record and associate those records with the claims file or with Virtual VA/VBMS so that such records are available to the VA examiner. Accordingly, the case is REMANDED to the RO for the following action: 1. The Veteran should be asked to identify all VA and non-VA providers who have treated his PTSD, and he should be asked to provide appropriate authorization for VA to obtain treatment records from non-VA providers. Then, the RO should obtain the appropriate outstanding treatment records and associate those records with the claims file or with Virtual VA/VBMS. The RO should make at least two documented attempts to obtain non-VA treatment records. If a provider does not respond after two requests, the Veteran should be notified and afforded an appropriate period in which to obtain the records himself and submit them to VA. 2. After any pertinent, outstanding records have been obtained, the Veteran should be afforded an examination by a VA examiner qualified to provide an opinion regarding the current severity of the Veteran's PTSD. The claims folder must be made available to and reviewed by the examiner, and any indicated diagnostic studies should be performed. In addition to dictating objective test results, the examiner's report should fully describe the effects of the Veteran's PTSD on his occupational functioning and daily activities. The examiner should provide a complete rationale for all opinions provided, and the RO should ensure that the examiner provides all information required for rating purposes. 3. The RO should also undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).