Citation Nr: 1325875 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-21 983 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD), prior to January 25, 2012. 2. Entitlement to a rating in excess of 50 percent for PTSD, from January 25, 2012. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to December 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision in which the RO, inter alia, granted service connection for PTSD and assigned a 10 percent rating. In July 2010, the Veteran filed a notice of disagreement (NOD) to the rating assigned. A statement of the case (SOC) was issued in June 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2011. Because the Veteran has disagreed with the initial rating assigned following the award of service connection for PTSD, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted a higher rating of 50 percent for PTSD from, effective January 25, 2012, during the pendency of the appeal, inasmuch as higher ratings for this disability are available, both before and after January 25, 2012, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as now encompassing both matters set forth on the title page. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals the documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. The Veteran was last afforded a VA examination in April 2012. However, in an October 2012 Informal Hearing Presentation, the Veteran's representative stated that the Veteran's PTSD continued to worsen. To ensure that the record reflects the current severity of the Veteran's service-connected PTSD and in light of the Veteran's contentions of increased and additional symptomatology, the Board finds that a more contemporaneous psychological examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate this disability. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Moreover, the Veteran and his representative have also asserted that he has been entitled to at least a 50 percent disability rating prior to the current January 25, 2012 effective date for such rating. As such, a medical opinion would be helpful to determine at what point from the August 25, 2008 date of claim for service connection, the Veteran's PTSD had increased in severity. Under these circumstances, the Board finds that new VA examination is needed to ensure that the record reflects sufficient finding to evaluate the severity of the Veteran's service-connected PTSD at all points pertinent to this appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Hence, the RO should arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist (or psychiatrist or psychologist contracted by VA). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claims (which emanate from an original claim for, and award of, service connection). See 38 C.F.R. § 3.655(2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding, pertinent private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claims should include consideration of whether any, or any further "staged rating" of the disability, pursuant to Fenderson (cited above), is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo mental disorders examination by a VA psychiatrist or psychologist (or a psychiatrist or psychologist contracted by VA). The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions (to include as reflected in the electronic record). All necessary tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the psychiatrist or psychologist prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal and/or homicidal ideation; delusions and/or hallucinations; and the level of social and occupational impairment. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's PTSD, and an explanation of what the score means. The examiner should also address whether the record reflects any change(s) in the severity of the Veteran's PTSD at any point since the Veteran's August 2008 claim for service connection, and, if so, the approximate date(s) of any such change(s). The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidenced and legal authority (to include consideration of whether any, or any further, staged rating, pursuant to Fenderson (cited above), is appropriate). 7. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).