Citation Nr: 1323822 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-40 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 20, 2007, and on or after October 1, 2007. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to November 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, the RO granted service connection for PTSD and assigned a 30 percent disability evaluation effective from August 9, 2005. In March 2008, the RO issued another rating decision in which a temporary 100 percent rating was assigned effective from August 20, 2007, and a 30 percent rating was assigned effective from October 1, 2007. In an August 2009 decision, the disability rating was subsequently increased to 50 percent effective prior to August 20, 2007, and as of October 1, 2007. However, 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 of entitlement to an increased evaluation remains on appeal and has been recharacterized as reflected on the title page. In addition to the physical claims file, there is a virtual file associated with the Veteran's claims. A review of that virtual file reveals that there are VA treatment records that are not contained in the physical file. 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 Veteran was most recently afforded a VA examination in February 2013 in connection with his claim for a higher initial evaluation. The examiner indicated that the Veteran did not have more than one mental disorder diagnosed and thus there was no need to differentiate between the symptoms of each disorder. However, she later listed both PTSD and major depressive disorder as the Axis I diagnoses and indicated that the Veteran also had a narcissistic personality disorder. Moreover, the examiner attributed the Veteran's chronic suicidal ideation to his depression. As such, the examination report appears to contain conflicting statements as to whether the Veteran has more than one diagnosis, and if so, whether the symptoms of each disorder can be distinguished from one another. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given this conflicting evidence as noted above, the Board finds that an additional examination would be helpful in determining which symptoms are attributable to the Veteran's service-connected PTSD and which symptoms are attributable to any non-service-connected psychiatric disorder. Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected PTSD. In addition, the record shows current mental health treatment through VA. As such, ongoing medical records should also be obtained on remand. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also obtain ongoing VA mental health treatment records dated from February 2013 to the present. 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 service-connected 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. To the extent possible, the examiner should distinguish between symptoms associated with the service-connected PTSD and any symptoms associated with a nonservice-connected disorder, such as major depressive disorder, narcissistic personality disorder, and bipolar disorder. If the examiner is unable to distinguish the symptomatology, the examiner should so state in the report. 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. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the 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 Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ 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).