Citation Nr: 1324068 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 05-10 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Edward M. Farmer, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of March 2004 and August 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that granted an initial rating of 30 percent for PTSD, effective September 17, 2003. The Veteran testified before the undersigned at an August 2008 Travel Board hearing. The hearing transcript is of record. In November 2008 and April 2010, the Board remanded the case for further development by the originating agency. In September 2011, the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In December 2012, the Court issued a decision which set aside the Board's September 2011 decision, and remanded the case to the Board for action consistent with the decision. The Veteran submitted additional pertinent evidence in June 2013, which has not yet been considered by the RO. However, the Veteran submitted a waiver of initial RO consideration of that evidence. 38 C.F.R. § 20.1304 (2012). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND In a recently submitted June 2013 statement, the Veteran's attorney argues that the Veteran's reported PTSD symptoms appeared to be of less severity than they were due to his successful use of avoidance strategies. The representative also noted that point had been confirmed by two psychologists who had treated the Veteran. Specifically, the representative noted that in a November 2010 statement, the Veteran's treating psychologist characterized the Veteran's PTSD symptoms as severe and pronounced, and concluded that the Veteran's previous examinations did not adequately evaluate the level of impairment the psychologist had consistently observed, due to the Veteran's successful use of avoidance strategies. The psychologist also stated that the Veteran experienced debilitating anxiety and depression that functionally immobilized him for several weeks at a time. Furthermore, the examiner felt that the Veteran had been able to remain employed through sheer determination to provide for his family. In its September 2011 decision, the Board found that evidence from the treating psychologist to be of limited probative value, and assigned more probative weight to VA medical records. The Court, in a Memorandum Decision, found that the Board did not provide an adequate statement of reasons and bases for favoring the opinion of one medical expert over that of another. The Court also found the Board's discrediting of the doctor's findings that the Veteran experienced debilitating anxiety and depression that functionally immobilized him for several weeks at a time on the basis that the Veteran denied losing any time from work due to his psychiatric disability was misplaced, in that, although the Veteran asserted that he did not lose time from work in 2009, that concession did not necessarily apply to 2010. The Board finds that as there is some discrepancy in the record as to whether the Veteran has accurately reported his PTSD symptoms during past evaluations, including VA mental health treatment and group therapy from May 2004 to October 2010, and VA examinations in November 2003, April 2007, November 2009, and most recently in September 2010. Therefore, a thorough and contemporaneous medical examination, that takes into account the records of prior medical treatment should be scheduled, so that the disability rating will be a fully informed one. The Veteran is advised that he has a duty to cooperate in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran's is notified that he should report to and cooperate with a scheduled examination. Failure to do so without good cause may result in the denial of the claim. 38 C.F.R. § 3.655 (2012). The Board also notes that evidence of record, including an October 2010 statement from the Veteran's wife, the November 2010 statement from the Veteran's treating psychologist, and a recent May 2013 independent psychological evaluation, suggests that the Veteran's symptoms have increased since his last VA examination in September 2010. Because of the Veteran's claims of increased symptomatology, a new VA examination is warranted to determine the current severity of his PTSD. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition to the VA examination, on remand, any pertinent private or VA treatment records generated since the September 2010 VA examination, not already of record, should be obtained and considered in connection with the examination. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all relevant VA medical records dated since September 2010. 2. Request that the Veteran identify any private medical records that are not of record and provide a release. Request those records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination to determine the current level of impairment due to PTSD. The examiner must review the claims file and must note that review in the report. A complete rationale should be given for all opinions. The examiner should provide the following: (a) Provide a full multiaxial diagnosis with a global assessment of functioning score. (b) Specifically discuss the effects of the Veteran's PTSD on his occupational and social functioning. (c) State the severity of the Veteran's PTSD and state whether the PTSD symptoms result in (1) total occupational and social impairment; (2) occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; (3) occupation and social impairment with reduced reliability and productivity; or (4) occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). (d) Specifically discuss the November 2010 opinion of the Veteran's treating psychologist and the May 2013 opinion of the independent examiner, that the Veteran's PTSD symptoms appeared to be less severe than they actually were, due to the Veteran's successful use of avoidance strategies to manage severe and pronounced PTSD symptoms. (e) Provide an opinion as to whether it is at least as likely as not (50 percent or great probability) that the Veteran's service-connected PTSD, tinnitus, left lower leg shrapnel wound, and bilateral hearing loss preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational background. 4. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).