Citation Nr: 1325958 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-24 357 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) to include major depressive disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1982. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2011 rating decision in which the RO increased the rating for the Veteran's PTSD to include major depressive disorder from 30 to 50 percent, effective January 26, 2011 (the date of the RO received the claim for increase). The Veteran filed a notice of disagreement in April 2011. A statement of the case was issued in August 2011 and the Veteran perfected his appeal with the filing of a substantive appeal in September 2011. An August 2013 review of the Virtual VA paperless claims processing system reflects that VA/CAPRI records current to February 1, 2012, were printed on February 24, 2012, and were considered as reflected in the February 2012, Supplemental SOC (SSOC). For reasons expressed below, the matter on appeal is being 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 Board's review of the claims file reveals that additional RO action the claim on appeal is warranted. The Veteran is seeking a rating in excess of 50 percent for his PTSD to include major depressive disorder. Unfortunately, a remand is required in this case to address this issue. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c),(d) (2012). The Veteran was most recently evaluated for his psychiatric disorder by QTC in February 2011. At that time, PTSD was diagnosed and a Global Assessment of Functioning (GAF) score of 56 was assigned. In subsequent statements dated in September 2011 and June 2013, the Veteran mentioned having suicidal ideation, possibly indicating a worsening of symptoms since the February 2011 QTC evaluation. The Board observes that it has now been more than 2 years since the Veteran has undergone a comprehensive PTSD examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination, as is essentially the case here with respect to PTSD. See 38 C.F.R. § 3.159 (2012); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). As mentioned above, the Veteran provided lay statements to the effect that his PTSD manifestations and/or overall condition may have worsened since he was last evaluated in 2011. Therefore, a new and contemporaneous examination is in order to determine the current manifestations and level of severity associated with the Veteran's service-connected PTSD. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the increased rating claim on appeal. See 38 C.F.R. § 3.655(b) (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 of the notice of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the above-noted examination, to ensure that all due process requirements are met, and the record before the examiner is complete, the RO undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. It appears that the Veteran receives his primary psychiatric treatment through VA at the VA Medical Center (VAMC) in Bonham, Texas, and that records current to February 1, 2012 are on file. As it appears that more recent records may exist, his records dated from February 1, 2012 forward, will be sought and added to the record, prior to readjudication of the claim. In this regard, the Board points out that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); See 38 U.S.C.A. § 5103A (b-c);38 C.F.R. § 3.159(c). The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim 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 also 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 to obtain, all outstanding, pertinent private medical records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties 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 compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim in February 2012. Accordingly, this matter is hereby REMANDED for the following action 1 A specific search for any and all records of VA mental health treatment, evaluation, an/or hospitalization for the Veteran should be made from February 2012 forward; it appears that the Veteran has primarily received VA treatment at the VAMC in Bonham, Texas. Any such records located should be associated with the paper claims file or electronic file, as appropriate. In the event that no VA records are available, this fact should be annotated for the record. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization t to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses are associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate medical professional, to assess the severity of his PTSD with major depressive disorder. The entire claims file, to include a complete copy of this REMAND, and copies of any relevant records on Virtual VA (if the examiner does not have access) 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. All indicated tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The VA examiner indicate all present symptoms, manifestations, as well as their nature and severity, attributable to the Veteran's service-connected psychiatric disability, in accordance with the rating criteria specified at 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition, pertinent lay information should be recorded and considered. 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 ideation; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) score that represents the level of impairment due to the Veteran's disability, and an explanation of what the score means. Further, based on review of the Veteran's documented medical history and assertions, the examiner should also indicate whether, at any time since January 26, 2011 the date of the claim for increase, the Veteran's service-connected PTSD to include major has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. All examination findings, along with complete rationale for any opinions expressed and conclusions reached, should be provided. 5. 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(s) sent to him by the pertinent VA medical facility. 6. 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. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claim for a rating in excess of 50 percent for PTSD to include major depressive , in light of all pertinent evidence and legal authority. Readjudication of the claim should include consideration of all evidence added to the file since the February 2012 SSOC was issued, and should reflect consideration of whether any staged and/or extra-schedular rating(s) is/are warranted. 8. If the 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 an appropriate period for response before the claims file is returned to the Board. 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).