Citation Nr: 1327970 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-07 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a higher initial evaluation than 50 percent for posttraumatic stress disorder, with depression and panic disorder. 2. Entitlement to an increased evaluation for left great toe disability with second toe hammertoe, currently rated noncompensably disabling. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from September 1988 to March 1997. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The RO noted in its August 2011 rating action that the findings of the VA examination in August 2011 that the Veteran's service-connected posttraumatic stress disorder (PTSD) were less severe than previously, and accordingly warranted a re-evaluation. However, the evidence of record does not indicate that the RO then re-evaluated the service-connected PTSD for rating purposes. The August 2011 examiner did not find symptoms meeting the criteria for a diagnosis of PTSD, and that the Veteran had depression, as well as anxiety related to childhood sexual trauma. The examiner further found that the diagnosed anxiety was not PTSD, as the DSM-IV criteria for PTSD were not met. Testing upon that examination revealed depression more severe than was previously found on examination, while also revealing less anxiety than previously found on examination. The Veteran's service-connected psychiatric disability is specifically characterized as PTSD with depression and panic disorder. Hence, the Board finds that an additional VA examination is in order to specifically ascertain the severity of psychiatric disability characterized as PTSD, with depression and panic disorder. Only if another psychiatric disability is present that may be differentiated should such other disability be differentiated for rating purposes. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Additionally, at his August 2011 VA psychiatric examination the Veteran reported that he was seeing a social worker for the past two years to deal with past abuse and his difficulties with relationships. These records should be sought upon remand. Additional pertinent treatment records were added to the evidence of record subsequent to the most recently issued supplemental statement of the case in July 2012, and hence the Veteran left great toe with second hammertoe disability should again be reviewed by the RO. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for an increased ratings for PTSD, with depression and panic disorder, for left great toe with second hammertoe disability, and TDIU. The RO must attempt to procure copies of all records which have not previously been obtained. All attempts to secure this evidence must be documented in the claims file by the RO. Regardless of the Veteran's response, the RO must attempt to obtain all records from the social worker the Veteran reported seeing during the VA examination in August 2011. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded a VA examination by a psychiatrist, to address the nature and severity of his service-connected PTSD, with depression and panic disorder. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must comment upon the presence or absence, frequency, and severity of the Veteran's service-connected PTSD, with depression and panic attacks symptoms to include: affect; speech; panic attacks; ability to understand complex commands; short- and long-term memory; judgment; abstract thinking; motivation; mood; ability to establishing and maintaining effective work and social relationships; suicidal and/or homicidal ideations; obsessional rituals; ability to function independently, appropriately, or effectively; impulse control; neglect of personal appearance and hygiene; ability to adapt to stressful circumstances; delusions or hallucinations; general behavior; persistent danger of hurting self or others; ability to perform activities of daily living; and orientation. The examiner must also enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. The examiner must consider: a. Historically, the Veteran has been diagnosed with PTSD within treatment records. However, upon most recent VA examination for compensation purposes in August 2011, the diagnostic criteria for PTSD was explicitly found not to be met. This must be contrasted with the prior VA examination in March 2009 and a preliminary PTSD examination in January 2009, with PTSD diagnosed at both of these examinations, and treatment records which similarly diagnose the disorder. The August 2011 examiner noted the presence of depression and anxiety disorder, and found the Veteran not to be capable currently of obtaining or retaining gainful employment due to anxiety-type symptoms associated with childhood sexual abuse, as well as due to absence of motivation. b. The Veteran's service-connected psychiatric disability has been characterized as PTSD, with depression and panic disorder. If another psychiatric disability is differentiable in its symptoms from the service-connected PTSD, with depression and panic attacks, this must be stated by the examiner, and the examiner must provide detailed findings as to the nature and scope of disability due to his PTSD, with depression and panic disorder, including whether the Veteran is precluded from obtaining or maintaining substantially gainful employment due to his PTSD, with depression and panic disorder. If another psychiatric disability present is not differentiable in its symptoms from the Veteran's PTSD, with depression and panic disorder, then the examiner must address the nature and scope of the entirety of the Veteran's psychiatric disabilities, including whether they, taken as a whole, preclude him from obtaining or maintaining substantially gainful employment. c. The examiner must consider the Veteran's own self-reported symptoms, as well as records of past examination and treatment. 3. The RO must notify the Veteran that it is his responsibility to report for the examination, and to cooperate in the development of the claim. 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 the scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any benefit sought on appeal is 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. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).