Citation Nr: 1320272 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-00 908 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to February 1965 and from March 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO increased the evaluation for the Veteran's PTSD from 30 percent to 50 percent effective from June 25, 2007. The RO subsequently issued a rating decision in November 2009 and increased the evaluation for the Veteran's PTSD from 50 percent to 70 percent effective from June 25, 2007. Nevertheless, applicable law mandates, that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. 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 law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran was last afforded a VA examination in connection with his increased rating claim in January 2009. In his January 2010 substantive appeal, he asserted that he is unable to obtain or maintain any kind of employment, sustain any kind of relationship, or achieve any quality of life. His assertions seem to suggest that the symptomatology associated with his service-connected PTSD increased in severity since his last VA examination. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Moreover, a February 2008 VA examiner found that the Veteran's PTSD symptoms had worsened in the past two years and stated that it appeared his symptoms were productive of a moderate degree of disability. The January 2009 VA examiner noted the Veteran's report of experiencing daily to weekly symptoms of PTSD productive of a moderate to severe degree of disability. The latter examiner suspected some exaggeration of symptoms, but commented that the Veteran's exaggeration or feigning of symptoms was unconscious or unintentional. The psychologist concluded that the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity due to the PTSD symptoms. However, in a February 2009 statement, the Veteran's treating psychologist opined that the Veteran did not possess the requisite emotional stability to establish and maintain effective relationships or ability to adapt to stressful circumstances, which were both required to successfully maintain gainful employment. In a June 2009 statement, the Veteran's treating psychiatrist also reported that the Veteran was quite isolated and was impaired in occupational functioning due to his PTSD. The psychiatrist concluded that his symptoms, such as anxiety, irritability, sleep disturbance, hypervigilance and hyperarrousal, made it unlikely that the Veteran would be able to gain or sustain employment. Based on the foregoing, there is also contrasting evidence regarding the degree of social and occupational impairment caused by the Veteran's PTSD. Therefore, the Board finds that additional examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's PTSD. In addition, on remand, the RO/AMC should ensure that all relevant records of VA treatment have been sought for association with the VA electronic or paper claims file. See 38 U.S.C.A. § 5103A(a)-(c). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers who have treated him for his PTSD. After obtaining any necessary authorization, all treatment records should be obtained and associated with the claims folder. A specific request should be made for any outstanding VA treatment records dated since October 2009. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After obtaining any identified and outstanding records, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's PTSD. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. 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). _________________________________________________ JESSICA J. WILLS 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).