Citation Nr: 1329765 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-03 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2007 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefit sought on appeal. The Veteran and his spouse testified at a hearing held at the Muskogee RO before an Acting Veterans Law Judge on June 16, 2009. A transcript of that hearing is associated with the claims file. However, the Acting Veterans Law Judge who conducted the hearing is no longer employed by the Board. As such, the Board provided the Veteran with an opportunity to appear at a hearing before another Veterans Law Judge to whom the Chairman has the authority to reassign the appeal for a decision. See 38 U.S.C.A. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707. However, in an April 2012 statement, the Veteran indicated that he did not wish to appear at a hearing and requested that the case be considered on the evidence of record. The Board issued a decision in May 2011 partially granting the Veteran's claim for entitlement to an initial disability rating in excess of 30 percent for PTSD by increasing the evaluation of his PTSD to 50 percent. The Veteran subsequently appealed the Board's decision denying an initial evaluation in excess of 50 percent for PTSD to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in December 2011, the Court vacated the May 2011 Board decision and remanded the matter to the Board for development consistent with the Joint Motion for Remand (Joint Motion) filed in this case. The case was returned to the Board for appellate review. In July 2012, the Board denied a higher rating for the Veteran a higher disability rating beyond 50 percent. The Veteran appealed the denial to the Court and in an Order dated in March 20013, the Court vacated the July 2012 Board decision and remanded the matter to the Board for development consistent with the Joint Motion for Remand (Joint Motion) filed in this case. The case was returned to the Board for appellate review. 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. REMAND Reason for remand: to obtain a VA examination and records for current findings. Under the VCAA, VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). Accordingly as the last PTSD examination was conducted in May 2010, and VA outpatient treatment records in the file are last dated in October 2010. The Board finds that remand is necessary to afford the Veteran a new examination and to obtain any additional treatment records to assess the current manifestations of the Veteran's PTSD. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. 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 must then be given an opportunity to respond. 2. The RO should also obtain any outstanding VA medical records dated from October 2010 to the present. If these records are unavailable, simply do not exist, or further attempts to obtain them would be futile, document this in the claims file. See 38 U.S.C.A. § 5103A(b). 3. Then, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Any and all tests and evaluations deemed necessary should be performed and the clinical findings must be reported in detail. The examiner should elicit a complete history of the Veteran's symptomatology and problems, and note that, in addition to the examination findings, the Veteran's self-reported history has been taken into consideration in the examination report. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The examiner must comment upon the presence or absence, frequency, and severity of the Veteran's PTSD to include: 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 findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. In particular, he or she should indicate whether the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or, total occupational and social impairment. In this regard, detailed information regarding his employment status (including the nature of his employment, number of hours spent working each week, any problems or conflicts associated with his job, and whether he is engaged in any other occupation), should be recorded. The examiner is also asked to discuss whether and how the Veteran's PTSD disability in and of itself affects his activities of daily living and ability to work. The examiner must specifically comment on the impact that the Veteran's service-connected PTSD has on his employability. In doing so, the examiner must also elicit from the Veteran and the record for clinical purposes, a full work and educational history. 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 GAF score should be interpreted, as it pertains to social and industrial adaptability. Any and all opinions must be accompanied by a complete rationale. 4. 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 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2013).