Citation Nr: 1323563 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 11-25 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1941 to September 1945. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from an October 2007 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied a rating in excess of 50 percent for PTSD. The Board upheld the RO's October 2007 decision with regard to that issue in a January 2012 decision. The Veteran appealed that decision to the Court. In July 2012, the Court issued an order that vacated the January 2012 Board decision only with regard to the matter of the rating for PTSD, and remanded that matter for re-adjudication consistent with the instructions outlined in a June 2012 Joint Motion for Remand (Joint Motion) by the parties. In February 2013, the Board remanded the case for additional development. The January 2012 Board decision also remanded the following five issues to the RO via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development: (1) whether new and material evidence has been received to reopen a claim of service connection for headaches with head fracture, to include as secondary to service-connected shell fragment wound (SFW) scar of the right temporal region; (2) entitlement to service connection for tinnitus; (3) entitlement to a rating in excess of 10 percent for SFW of the right forearm, muscle group VIII, with ulna fracture; (4) whether there was clear and unmistakable error (CUE) in an August 1946 RO rating decision as to the rating assigned by that decision for the Veteran's SFW of the right forearm, muscle group VIII, with ulna fracture; and (5) entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). For issue (1) above, the requested development is still in the process of being completed, and thus this issue has not yet been returned to the Board for further appellate action. For issues (2), (3), and (5) above, a May 2013 AMC rating decision granted the following: service connection for tinnitus; an increased rating of 30 percent for SFW of the right forearm, muscle group VIII, with ulna fracture (effective February 27, 2007, the date of the increased rating claim); and a TDIU rating (effective February 27, 2007, the date of the increased rating claim). As the benefits sought for those three matters have now been granted, they are no longer a part of the current appeal and consequently are not before the Board. For issue (4) above, the Board notes that the AMC considered this issue in its May 2013 rating decision, but declined jurisdiction on the matter by stating that a decision by the Board is not subject to review by the RO. However, the RO was only asked to consider the issue of whether there was CUE in an August 1946 RO rating decision as to the rating assigned by that decision for the Veteran's SFW of the right forearm, muscle group VIII, with ulna fracture. [The RO was not asked to consider the pending allegation of CUE in an October 2005 Board decision, as such allegation is inextricably intertwined with the claim alleging CUE in the August 1946 RO rating decision, and therefore, consideration of the motion alleging CUE in the October 2005 Board decision continues to be deferred.] Therefore, the issue of whether there was CUE in an August 1946 RO rating decision as to the rating assigned by that decision for the Veteran's SFW of the right forearm, muscle group VIII, with ulna fracture, is referred back to the Agency of Original Jurisdiction (AOJ) for appropriate action consistent with the Board's January 2012 remand instructions regarding that issue. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if any action on his part is required. REMAND In February 2013, the Board instructed the RO to secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for PTSD since January 2007, to specifically include treatment from May 2007 to January 2009 as well as from April 2011; if any records requested were unavailable, the reason was to be explained for the record. Pursuant to the Board's February 2013 remand instructions, the RO obtained all of the Veteran's VA treatment records dating from January 2007 to April 2011, but did not obtain any records from April 2011 on. There is no indication that such records were requested but found to be unavailable. Therefore, such records must now be secured. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In addition, the Board notes that the Veteran was most recently afforded a VA examination for his PTSD disability in October 2007, more than five and a half years ago. Therefore, a contemporaneous examination to assess the severity of this disability is necessary. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his PTSD disability since April 2011. If any records requested are unavailable, the reason must be explained for the record. 2. After the development sought above is completed, the RO should arrange for the Veteran to be examined by a psychologist or psychiatrist to assess the current severity of his PTSD. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA), as well as the criteria for rating PTSD, must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should identify all symptoms (and associated impairment of function) of the Veteran's PTSD, and indicate the presence or absence of each symptom in the criteria for ratings in excess of 50 percent for such disability. If a symptom is noted to be present, the examiner should comment on its severity and frequency. The examiner should also identify any symptoms of PTSD found that are not listed in the schedular criteria, noting their nature, frequency, and severity. The examiner must explain the rationale for all opinions. 3. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claim for an increased rating for PTSD. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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). _________________________________________________ GEORGE R. SENYK 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).