Citation Nr: 1320452 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-11 093A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) rated 50 percent disabling, prior to July 16, 2010. 2. Entitlement to an increased rating for PTSD rated 70 percent disabling, since July 16, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Houston, Texas, Regional Office (RO). The July 2008 RO decision denied a rating in excess of 50 percent and an August 2010 decision assigned a 70 percent rating, effective July 16, 2010. In a May 2012 decision, the Board denied ratings in excess of 50 percent and 70 percent for the respective periods and the Veteran appealed the determinations to the U.S. Court of Appeals for Veterans Claims (Court). The Court granted the parties' Joint Motion for Vacatur and Remand (JMR) in a December 3, 2012, Order, returning the appeal for compliance with the terms of the JMR. In January 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge; the transcript is of record. 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 The parties to the December 2012 JMR agreed that statements of the Veteran's spouse, indicating an increase in the severity his psychiatric symptoms, required VA to consider providing the Veteran a contemporaneous VA PTSD examination, based on evidence of an increase in symptomatology since his July 2010 VA examination. On remand, the Veteran must be provided a VA PTSD examination because the terms of JMR and a sympathetic review of the evidence at least arguably suggest there may have been an increase in his PTSD symptoms. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Relevant VA psychiatric treatment records dated since April 2009 also must be obtained on remand. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). The December 2012 JMR also reflects an agreement that the July 2009 statement of the Veteran's employer, describing psychiatric symptomatology and employment performance, does not clearly attribute a noted decrease in the Veteran's performance to his psychiatric symptomatology or the removal of his eye. (Note: The December 2012 JMR states the employer's statement is dated in June 2009, but it is dated in July 2009). A medical opinion must be obtained to attempt to ascertain whether the described decrease in employment performance is related to PTSD or the removal of the Veteran's eye. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or who were contemporaneously informed of his psychiatric symptoms, including any possible occupational impairment. Provide an appropriate amount of time to submit this evidence. 2. Obtain all outstanding VA treatment and/or hospitalization records dated since April 2009 related to the Veteran's psychiatric condition. Any negative response(s) must be in writing and associated with the claims folder. 3. Then, schedule the Veteran for a VA PTSD examination with an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide the full history of the condition, including the Veteran's account of symptomatology. The examiner must report all pertinent findings and provide a current GAF score. All necessary tests must be performed. Additionally, the examiner must consider the July 2009 and August 2011 statements of the Veteran's employer, in context with all evidence of record and current examination findings, and opine whether the Veteran's reported decreased employment performance is attributable to PTSD. The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. 4. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If either benefit remains denied issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ RONALD W. SCHOLZ 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).