Citation Nr: 1320053 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-03 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected chronic anxiety disorder (claimed as posttraumatic stress disorder (PTSD)). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which assigned the Veteran's service-connected chronic anxiety disorder, considering his claim of entitlement to service connection for PTSD, an increased rating of 10 percent, effective September 12, 2008, the date of his claim. 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 Additional development is needed prior to further disposition of the claim. The Veteran's most recent VA treatment records associated with the claims file, considering both the physical claims file and Virtual VA, are dated relatively recently, in April 2013. However, the Veteran's updated VA treatment records should be obtained and associated with the claims file in anticipation of the Board's decision in the present appeal subsequent to this remand. Because VA is on notice that there are additional records that may be applicable to the Veteran's claim and because the updated VA treatment records may be of use in deciding the claim, these records are relevant and should be obtained. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran was afforded a VA examination in February 2009. In a January 2010 statement, the Veteran expressed his dissatisfaction with the examiner's conclusion that the Veteran's PTSD was not caused by or a result of an in-service event, although his anxiety disorder was at least as likely as not caused by or a result of an in-service event. The Veteran noted that he was, in fact, granted service connection for "neurosis" on his initial claim which was only a few years after there was an actual diagnosis of PTSD and few mental health professionals were familiar with the condition; he requested a new VA examination. In a March 2010 statement, the Veteran asserted that his symptoms have worsened whether characterized as "neurosis", "generalized anxiety disorder", or "PTSD". In his May 2013 Appellant's Brief, the Veteran's representative noted that the last VA examination was conducted more than 36 months prior and the Veteran had asserted that his condition has worsened since that time. When available evidence is too old for an adequate evaluation of a Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the United States Court of Appeals for Veterans Claims (Court) held that, when a Veteran claims that a disability is worse than when originally rated, or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined 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); see, as well, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the 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). See also VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran therefore needs to be reexamined to assess the severity of his service-connected psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Biloxi, Mississippi, from April 2013 to the present. If a negative response is received from any VA facility, the claims file should be properly documented in this regard; and the Veteran must be properly notified and provided an opportunity to submit such records. 2. Schedule the Veteran for a VA examination with a different examiner than the examiner who conducted the February 2009 VA examination to determine the severity of the Veteran's service-connected chronic anxiety disorder (claimed as PTSD). The new examiner should note all relevant pathology and symptoms related to the Veteran's psychiatric disability and all indicated tests should be conducted. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. 3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ S. L. Kennedy 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).