Citation Nr: 1320017 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-15 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD), in excess of 10 percent for the period from May 29, 2003 to June 10, 2008 and in excess of 30 percent from June 11, 2008. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to September 1970 and was awarded the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating action of the above Regional Office (RO), which granted service connection for PTSD and assigned an initial noncompensable disability rating as of May 29, 2003. By a March 2009 rating action, the RO awarded a 10 percent rating for the Veteran's PTSD from May 29, 2003 and a 30 percent disability rating from June 11, 2008. Despite the grants of increased disability ratings for the Veteran's PTSD, he has not been awarded the highest possible evaluation available. As a result, he is presumed to be seeking the maximum possible evaluation, and the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a hearing conducted before the undersigned Veterans Law Judge in September 2012 at the Atlanta RO. A transcript of the hearing has been associated with the claims file and has been reviewed. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He has not alleged that he is unemployable due to his PTSD. He reported to the February 2008 VA examiner that the primary reason he could not work was because of his painful right foot, that he used to work as a security guard for many years, and that it was impossible to find work with his degree of pain and physical limitation. The question of entitlement to a total disability rating based on individual unemployability due to the service-connected PTSD has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his service-connected PTSD is more disabling than is reflected in the current 10 percent and 30 percent disability ratings. It is implicit in the Veteran's recent hearing testimony that his psychiatric disorder has worsened since he was last examined by VA. He maintains that he has problems with anger, nightmares, and social isolation. See September 2012 hearing transcript. The Veteran is competent to provide evidence as to the severity of his symptoms. See 38 C.F.R. § 3.159(a)(2) (2012). In addition, the most recent clinical examinations addressing the severity of the Veteran's PTSD were conducted in February 2008 by a VA psychiatrist and in June 2008 by a private psychiatrist, 5 years ago. In fact, the principal purpose of those VA evaluations was to determine the etiology of any diagnosed psychiatric symptomatology-in other words to determine whether service connection for PTSD was warranted. Clearly, such evaluations were not performed with the purpose of providing the findings required to rate the disorder. Moreover, since those VA examinations, there is little evidence in the claims file which adequately describes the current nature and extent of the Veteran's PTSD. As there may have been significant changes in the Veteran's service-connected PTSD since the previous examinations, and to ensure that his own complaints are sufficiently considered by a VA examiner, the Board finds that the matter should be remanded for a new VA examination so that a detailed picture of the current state of his PTSD may be obtained. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory 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, 381 (1994) (the Board should have ordered a contemporaneous examination of the veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of present PTSD symptoms, as well as any significant pertinent interval medical history since his last VA examination in 2008. Also on remand, ongoing medical records should be obtained. 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 pertinent). In this regard, the Board notes that the Veteran has identified the existence of more additional treatment records from Dr. S. Pyle at Wellston Behavioral Medicine. See VA Form 21-4142(Authorization and Consent to Release Information to VA) dated September 13, 2012. The records from this medical provider have not been obtained and associated with the claims folder. Therefore, the Board finds that a remand is necessary, since relevant clinical records may exist and the Veteran's intent is to have them submitted for review. The Board cannot adjudicate the claim based on an incomplete record. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record.). Finally, the Veteran is appealing the original assignment of the disability rating for his service-connected PTSD following the award of service connection. In such a case, the present level of disability is not the only consideration, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings-that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Thus, the disability evaluation must be considered from May 29, 2003 to the present. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms from the Veteran, procure any medical records not already in the claims file relating to recent treatment for, or evaluation of, his service-connected PTSD. The Board is particularly interested in any pertinent treatment that the Veteran has received from Dr. S. Pyle at the Wellston Behavioral Medicine since January 2009. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. The Veteran should then be scheduled for a VA examination of his service-connected PTSD. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished. All signs and symptoms of the Veteran's PTSD should be reported in detail. [In other words, any disabling manifestations specifically attributable to PTSD must be fully outlined and differentiated from symptoms caused by any nonservice-connected disorder.] Also, the examiner is requested to use a multiaxial assessment, assign a Global Assessment of Functioning (GAF) score, explain what the assigned score represents in terms of the Veteran's psychological, social, and occupational functioning. The examiner should also describe the impact of the Veteran's PTSD on his occupational and social functioning. Complete rationale for all conclusions reached should be provided. 3. Thereafter, readjudicate the claim for an initial rating for PTSD greater than 10 percent from May 29, 2003 to June 10, 2008 and greater than 30 percent since June 11, 2008. If this benefit remains denied, furnish the Veteran and his representative a supplemental statement of the case, with appropriate time for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO 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 Court. 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).