Citation Nr: 1327505 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-23 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 10 percent for a retained shell fragment, residuals of shell fragment wound, left bicep. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). 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. A review of the Virtual VA claims processing system reveals an August 2013 presentation from the Veteran's representative that has been physically added to the claims file but otherwise contains no pertinent information not physically of record. REMAND The Veteran asserts that the ratings assigned for his service connected PTSD and shell fragment wound in the left bicep do not adequately reflect the severity of either disability. With respect to PTSD, he asserted in his July 2008 notice of disagreement that the Global Assessment of Functioning (GAF) score of 58 assigned following the VA psychiatric examination conducted under the direction of VA in May 2008 was "wrong," and cited as evidence to support this assertion the GAF score of 45 contained in a March 2007 assessment of record by a private psychologist. As for his service connected gunshot wound, the Veteran asserted in his April 2009 substantive appeal that the August 2007 VA examination conducted to determine the severity of this disability did not document additional problems he has as a result of this wound. Given the assertions as to the adequacy of the VA examinations conducted to determine the severity of the conditions at issue; the amount of time that has elapsed since the Veteran was afforded these examinations (over five years); and the need for clinical findings and medical comments to evaluate the disabilities at issue, the RO should arrange for VA examinations of the Veteran in regard to his claims for increased ratings. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA finds, as the Board does in the instant case, that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2012); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is hereby advised that failure to report for the scheduled examinations, without good cause, may well result in denial of the claims. 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 any scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of any such examination sent to him by the pertinent VA medical facility. Prior to arranging for further examination and to ensure that the record before the examiners is complete and that all due process requirements are met, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA records of evaluation and/or treatment. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the matters 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). 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 matters on appeal. The RO's adjudication of the claims should include whether staged ratings (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Fenderson v. West, 12 Vet. App. 119 (1999), is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. 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 matters remaining on appeal. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical 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). 3. 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. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination for an evaluation of his PTSD. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD. The examiner should also specifically address the impact such disability has on the Veteran's employability. All opinions expressed should be accompanied by supporting rationale. 5. Arrange for the Veteran to undergo a VA examination for an evaluation of his shell fragment wound in the left bicep. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify, by Roman Numberal, all muscle groups affect and for each such muscle group, whether there is "slight," "moderate," "moderately severe" or "severe" disability therein as defined by 38 C.F.R. § 4.56. The examiner should also specifically address the impact such disability has on the Veteran's employability. All opinions expressed should be accompanied by supporting rationale. 6. If the Veteran fails to report to any scheduled VA examination, obtain and associate with the claims file a copy of any notice of the date and time of any such examination sent to him by the pertinent VA medical facility. 7. 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). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent medical evidence (to include that added to the record since the last adjudication of the claim) and legal authority (to include consideration of whether staged ratings, pursuant to Fenderson (cited above), are warranted). 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case 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 appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ B. MULLINS Acting 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).