Citation Nr: 1325829 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-07 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) and depressive disorder not otherwise specified. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from September 1959 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision by the RO which denied the benefit sought on appeal. The Veteran had previously requested a hearing before the Board. However, in a March 2010 statement, the Veteran indicated that he no longer desired a hearing, due to the fact that he has too much trouble traveling. As such, the Board considers his hearing request withdrawn. 38 C.F.R. § 20.704 (2012). A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated December 2009 to November 2011. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain a new VA examination. Remand may be required where the record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). Here, the Veteran claims that his PTSD and depressive disorder not otherwise specified are worse than reflected by his current 50 percent evaluation. In a December 2011 statement, he has stated that his condition has caused several deficiencies in the areas of family relations, judgment, thinking, and mood due to obsessional rituals in particular. The Veteran detailed how he continually collects and orders from catalogs, despite not really needing anything he orders, burdening finances, and cluttering up his living spaces. He stated that these activities had led to marital difficulties, particularly emotional withdrawal and isolation. The Veteran also stated that he regularly neglects his hygiene and get irritated when he is reminded about it. The Veteran has also stated that his condition causes interference with other daily activities as well. A review of the Veteran's VA outpatient treatment records shows that he has been regularly treated for PTSD with therapy and medication since 2008 and has attended regular group therapy sessions. The Veteran's VA psychiatrist, Dr. G. K., has stated that the Veteran's symptoms interfere with his ability to work and, in a January 2010 letter, stated that the Veteran has been treated by him for severe PTSD. The symptoms were reported as being so severe that he is unable to manage even simple employment or daily functions without help. The Veteran was reported as continuing to have problems with severe memory loss and was disoriented at times. He suffers from depression and relies on his wife for reminders regarding hygiene and appearance. The Veteran was reported as isolated and avoiding crowds. Despite medication and therapy, the Veteran's symptoms have continued to progress and were unlikely to change. It was determined that, due to his PTSD, the Veteran was unable to partake in any gainful employment. The Veteran was provided with a VA examination in April 2009. At that examination, the examiner found that the Veteran's symptoms were consistent with PTSD, as well as a related depression. It was noted that the Veteran reported forgetting directions and getting lost sometimes. He had a very anxious mood and restricted affect. There were constant jittery psychomotor activities with frequent leg jiggling and a worried face. His memory and concentration levels were fairly good. The Veteran's PTSD was found to be of a moderate level. It was determined that the Veteran was able to maintain activities of daily living, including good hygiene. The Veteran was found to be employable, but would do best in a setting where he has little to no public contact and loose supervision. He was given a global assessment of functioning (GAF) score of 52. The Veteran was provided with an additional VA examination in November 2011. At this examination, the Veteran was diagnosed with PTSD related to in-service experiences and depression related to his current limitations brought upon by other health problems, some of which are related to military service. The Veteran's affect was noted as normal, but tearful. He reported having weird dreams that wake him. The Veteran suffers depression nearly every day, but this is related to his perception of his medical issues. Although it was noted that the depression had increased, the Veteran's PTSD symptoms were noted as consistent. The examiner determined that, but for the Veteran's physical disabilities, he would be employable, even with his PTSD symptoms. He noted that he could still work in the capacity of a magic shop owner, as he previously did. Functional impairment was not found to be significant for the Veteran's PTSD, although it was noted that his depression was leading to increased lack of motivation to participate in therapy. The examiner provided a GAF score of 62 Although the April 2009 and November 2011 VA examinations were adequate to support the assignment of the current evaluation of 50 percent, their contrast with the Veteran's contentions and the contention of Dr. G. K. that the Veteran's condition is severe rather than mild or moderate must be reconciled. See 38 C.F.R. § 4.130, Diagnostic Code 9411. VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2012). This duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). As such, it is necessary to obtain a new examination in order to assess the current severity of the Veteran's PTSD as well as reconcile the findings of the Veteran's VA physician, Dr. G. K. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the Veteran's PTSD. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. In particular, the examiner is asked to reference the January 2010 letter from the Veteran's psychiatrist, Dr. G. K., as well as his related VA psychiatric records, and discuss the findings in that evaluation of the Veteran's condition as severe and preventing any kind of employment. Any deviation in the findings of the Veteran's current condition must be sufficiently explained. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ DEBORAH W. SINGLETON 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).