Citation Nr: 1323707 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-23 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Huntington, West Virginia. This decision awarded the Veteran service connection, with a 30 percent initial rating effective from October 2, 2007, for PTSD. He filed a notice of disagreement regarding the assigned disability rating. In August 2011, the Veteran and his spouse testified via video before the undersigned Acting Veterans Law Judge. A written transcript of this hearing has been added to the claims file. The Board also observes that in a July 2012 rating decision, the Veteran was awarded service connection, with a 30 percent initial rating, for bilateral hearing loss. In a previous January 1971 rating decision, the Veteran was also awarded service connection, with a 20 percent initial rating, for bilateral hearing loss. The prior service connection award and disability rating for bilateral hearing loss does not appear to have been terminated or rescinded by VA, as two awards for bilateral hearing loss are listed within the July 2012 rating decision. The award of two compensable ratings for the same disability is akin to pyramiding, a practice prohibited by regulation. See 38 C.F.R. § 4.14 (2002) ("The evaluation of the same disability under various diagnoses is to be avoided."). 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 Increased Initial Rating for PTSD The Veteran seeks an initial rating in excess of 30 percent for his service-connected PTSD. At his August 2011 hearing, the Veteran and his spouse testified that his PTSD symptomatology has worsened since his most recent VA examination in April 2010. Although both are lay parties, they are competent to testify regarding such observable symptomatology as the Veteran's mood, affect, social interactions or lack thereof, and other observable behavior. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Therefore, remand is required in order to afford the Veteran a more recent VA psychiatric examination which reflects his current level of impairment. Next, the Veteran testified at his August 2011 hearing that he receives ongoing monthly treatment for his PTSD at the Huntington Vet Center. Review of the record indicates that although such records were previously requested and received by the RO, the last such request was in 2008, five years ago. VA's duty to assist includes obtaining relevant VA, other federal, and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b), (c) (West 2002 & Supp. 2012). As additional pertinent medical treatment records remain outstanding, remand is required to obtain such evidence and associate it with the claims folder. Finally, the Veteran testified at his August 2011 hearing that he is in receipt of Social Security Disability benefits from the Social Security Administration (SSA). VA's duty to assist includes an obligation to obtain Social Security Administration records associated with a Veteran's claim for Social Security Disability benefits. See 38 U.S.C.A. § 5103A(c); see also Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). As such records have yet to be obtained by VA, remand is required in order to obtain the Veteran's SSA records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records not already obtained from the Vet Center in Huntington, West Virginia. If no such records are available, that fact must be noted for the record. 2. Contact the SSA and request all pertinent medical records and other documentation pertaining to any claim for disability benefits by the Veteran. These records should be associated with the claims file. Any negative response must be documented in the claims folder. 3. Schedule the Veteran for a VA psychiatric examination to determine the current impairment resulting from his service-connected PTSD. The claims files must be made available to and reviewed by the examiner. The examination report should include a discussion of the Veteran's psychiatric history and his reported symptoms. The examination report should report the severity of the Veteran's PTSD in terms conforming to the applicable rating criteria. The examiner should indicate whether the PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity and difficulty in establishing effective work and social relationships; occupational and social impairment with deficiencies in most areas, including work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment. The examiner should provide an opinion concerning the impact of the Veteran's PTSD on his ability to obtain and maintain gainful employment. Finally, a Global Assessment of Functioning (GAF) score must be provided. The examiner should provide the rationale for all opinions expressed. 4. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending increased rating claim for PTSD in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ C. KRASINSKI Acting 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).