Citation Nr: 1329281 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-16 750 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from April 14, 2005 to April 3, 2007. 2. Entitlement to a rating in excess of 50 percent for PTSD from April 4, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to April 1977, and from April 1977 to January 2004. These matters come to the Board of Veterans' Appeals (Board) from April 2007 rating decision in which the RO awarded service connection and assigned an initial, 50 percent rating for PTSD, effective April 14, 2005. In May 2007, the Veteran filed a notice of disagreement (NOD) with the assigned rating. A statement of the case (SOC) was issued in May 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2008. In June 2012, the Board denied the issue of entitlement to an initial rating in excess of 50 percent for PTSD for the period from April 14, 2005 to April 3, 2007. The Veteran appealed the June 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2013, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In the same June 2012 decision, the Board also remanded the issue of entitlement to a rating in excess of 50 percent for PTSD from April 4, 2007 to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in an April 2013 supplemental SOC (SSOC)) and returned this matter to the Board for further consideration. The Board observes that in the February 2013 joint motion, the parties indicated that it was unclear whether there was any additional relevant VA psychiatric treatment records for the period from November 2006 to April 2007 as suggested in the Board's remand. However, VA treatment records previously associated with the claims file indicated that they were dated to April 9, 2007, although the last treatment record was dated in November 2006. Moreover, on remand, additional VA treatment records dated to April 2013 were obtained, and there were no additional records for the period of November 2006 to April 2007. As such, no further development in accordance with the joint motion is necessary. Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for PTSD, the Board has characterized this matter 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). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. In pertinent part, an August 2013 brief prepared by the Veteran's representative of record has been associated with the Veteran Virtual VA electronic record as well as additional VA treatment records dated to April 2013. However, a review of the remaining documents in such file reveals that they 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 are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. The Board previously remanded these matters in June 2012 to obtain any outstanding VA treatment records as well as afford the Veteran a current VA mental disorder examination to address the severity of his PTSD. The Veteran was afforded a VA examination in July 2012. During the examination, the Veteran reported receiving continuing private treatment from Dr. E.H. at Goldsboro Psychiatric Clinic. The examiner specifically noted that there were no recent records from the Veteran's treating psychiatrist documenting recent functioning and symptoms. The Board observes that the claims file only includes records dated from May to June 2005 from this physician. Moreover, the Veteran's Virtual VA electronic record also does not contain any additional records. Hence, as these records are pertinent to the claims on appeal, the Board finds that a remand is necessary to obtain any additional treatment records from Dr. E.H. from June 2005 to the present. Therefore, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the appellant another opportunity to provide information and/or evidence pertinent to the claim remaining on appeal, explaining 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). In its letter, the R) should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain outstanding, pertinent private records, to include those from Dr. E.H. referenced above. 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). On remand, the RO should also obtain and associate with the claims file all outstanding VA treatment records. As noted above, the Veteran's Virtual VA electronic record includes VA outpatient treatment records from the Fayetteville VA Medical Center (VAMC) dated to April 2013. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of the 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). Hence, the RO must obtain any outstanding records of treatment from the Fayetteville VAMC since April 2013, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Moreover, if any additional outstanding evidence is obtained, the claims file should be forwarded to the VA examiner who conducted the July 2012 VA psychiatric examination for review, and issuance of an addendum opinion to address whether the record reflects any change in the severity of the Veteran's PTSD. 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 claims on appeal. The RO's adjudication of the claims for higher ratings for PTSD should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited above), is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Fayetteville VAMC any outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, since April 2013. The RO must 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 claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical records. to particularly include those from Dr. E.H. dated from June 2005 to the present . 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, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/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, forward the entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, to the individual who conducted the July 2012 VA psychiatric examination for review, and issuance of an addendum opinion. The examiner should specifically address whether the record reflects any change in the severity of the Veteran's PTSD at any point since the April 14, 2005 effective date of the award of service connection for the disability. If so, the examiner should identify the approximate date of the change(s), and provide an assessment of the severity of the disability on each date. If the July 2012 examiner is not available, or another examination is deemed necessary, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatric or psychologist, to obtain an opinion addressing the questions posed above. The entire claims file, to include complete copy of this REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings, along with complete rationale for any conclusions reached, in a printed (typewritten) report. 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. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence and legal authority (to include consideration of whether staged rating, pursuant to Fenderson (cited above) is appropriate). 7. 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 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 benefit 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).