Citation Nr: 1326285 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-48 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1970 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD, rated 30 percent, effective September 18, 2009. In June 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Board has reviewed the Veteran's claims file and his record maintained in Virtual VA (VA's electronic data storage system). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who conducts a hearing must (1) fully explain the issue and (2) suggest the submission of evidence that may have been overlooked. At the Travel Board hearing in June 2011 the Veteran was not formally notified of what was needed to substantiate his claim for an increased rating. The arguments presented by his representative at the hearing express awareness of what is needed to substantiate the claim, and he has received notice of the requirements from the RO. Nonetheless, the Veteran is advised that a 50 percent rating for PTSD requires evidence of occupational and social impairment with reduced reliability and productivity; a 70 percent rating requires evidence of occupational and social impairment with deficiencies in most areas; and a 100 percent rating requires evidence of total occupational and social impairment [i.e., due to PTSD symptoms]. On remand the Veteran will have the opportunity to supplement the record as desired, and the claim will be readjudicated. The record reflects the Veteran continues to receive VA treatment for his psychiatric disability; the most recent records of VA mental health treatment/evaluation associated with the claims file are from June 2011. Updated VA treatment records are pertinent (and perhaps critical) evidence to the instant claim for increase, are constructively of record, and must be secured. 38 C.F.R. § 3.159(c)(2). At the June 2011 hearing, the Veteran testified that he sees W. Floreck, Ph.D. once a month for individual counseling. Only limited records of such treatment are associated with the record. Complete records of all psychiatric evaluations or treatment during the relevant period are pertinent (and may be critical) evidence. Hence, complete clinical records from Dr. Floreck from September 2009 must be secured. 38 C.F.R. § 3.159(c)(1). The Veteran is advised that a governing regulation provides that where pertinent evidence requested in connection with a claim for VA benefits (to include releases for records of private treatment) is not received within one year of the request; the claim is to be considered abandoned. See 38 C.F.R. § 3.158(a). He is further advised that if VA is unable to secure private records of his treatment, it is ultimately his responsibility to ensure that such records are received. In reviewing the contemporaneous private and VA treatment records provided, the Board notes there is a wide discrepancy in the psychological evaluations and GAF scores assigned (e.g., the June 2011 opinion of Dr. Floreck assigned a GAF score of 42, reflecting serious symptoms, while a May 2011 VA treatment record shows the Veteran was assigned a GAF score of 65, reflecting mild symptoms). This raises questions regarding the actual disability picture presented by the PTSD. Development to resolve the discrepancy in the GAF scores is necessary. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a TDIU rating, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU rating based on such disability is warranted. At the June 2011 hearing, the Veteran testified that he retired from the post office because of the stress of his job; then after taking a part-time custodian position at a school, he stopped working because he became fearful and stressed due to loud noises and dropping of trays. As such, the Board finds that a claim for a TDIU rating has been raised by the record. As the RO has not developed or adjudicated the matter of whether the Veteran is entitled to a TDIU rating, under Rice, the Board must remand for such action. 38 C.F.R. § 4.16. The severity of the Veteran's service-connected disabilities, his employment history, his education and training, and all other factors having a bearing on the matter must be developed and considered. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify all private providers of treatment and/or evaluation he has received for his psychiatric disabilities since September 2009 and to provide the authorizations necessary for VA to obtain all outstanding records of any such private evaluations and treatment (to specifically include a release for complete records from W. Floreck, Ph.D. since September 2009). The RO should secure for the record copies of the complete clinical records of all evaluations and treatment from the sources identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the RO's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. The RO should also obtain updated records of all VA psychiatric treatment the Veteran has received since June 2011 (to include treatment at the East Orange VA Medical Center and the James J. Howard Community Clinic in Brick, New Jersey). The RO should also ask the Veteran to provide authorization for VA to inquire of the U.S. Postal Service the circumstances of the Veteran's retirement from that employer (i.e. whether his psychiatric disability was a factor in early retirement, as alleged). The RO should ascertain (by contact with the U.S. Postal Service) whether the Veteran indeed took an early retirement from the Postal Service due to behavioral problems flowing from his PTSD. 2. When the development requested above is completed, the RO should arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist (one who has not previously examined the Veteran) to assess the current severity of his PTSD and resolve the discrepancy regarding the disability picture presented by the current record. The examiner must review the Veteran's claims file in conjunction with the examination, and based on such review and psychiatric evaluation of the Veteran, the examiner should respond to the following: a. The examiner should describe fully the current disability picture presented by the Veteran's PTSD, identifying all current symptoms in detail (specifically noting the presence or absence of each symptom in the schedular criteria for ratings in excess of 30 percent), and commenting on the associated impairment on occupational and everyday functioning. b. Based on a review of the entire record, the examiner should offer an opinion regarding the levels of impairment associated with the Veteran's PTSD throughout since September 2009, specifically addressing whether there are any distinct periods when the disability is shown to have had manifestations productive of (1) occupational and social impairment with reduced reliability and productivity; (2) occupational and social impairment with deficiencies in most areas; or (3) total occupational and social impairment. Please identify the factual data that support the conclusions. The examiner should also comment on the VA and private opinions offered at various times regarding the level of severity of the Veteran's PTSD. The examiner should express agreement or disagreement with the opinions and explain the rationale for the agreement/disagreement. The examiner should specifically comment on the wide discrepancies between the GAF scores assigned by Dr. Floreck and those in contemporaneous VA treatment records. c. The examiner should also opine specifically regarding the impact of the Veteran's PTSD on his employability (i.e. whether his PTSD is of such severity that it prevents him from engaging in any substantially gainful employment consistent with his education and experience). The examiner is asked to identify any specific types of employment that are precluded by the Veteran's PTSD and any employment (consistent with the Veteran's education and experience) that would remain feasible despite the PTSD. 3. The RO must ensure that all development sought is completed and should then review the record and readjudicate the claim, to encompass the matter of entitlement to a TDIU rating (if such remains raised by the record). If it remains denied (or the claim is dismissed as abandoned under 38 C.F.R. § 3.158(a)), the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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 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). _________________________________________________ George R. Senyk 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).