Citation Nr: 1330810 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-33 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to December 22, 2010, and 50 percent disabling effective that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from March 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and January 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the September 2010 rating decision, the RO granted service connection and assigned an initial 30 percent rating for PTSD, effective February 28, 2006. In January 2011, the RO granted an increased, 50 percent rating for PTSD, effective December 22, 2010. The RO has characterized the issue on appeal as entitlement to an evaluation in excess of 50 percent for PTSD, stemming from the January 2011 rating decision. However, the Veteran was afforded a VA examination in December 2010, within one year of issuance of the September 2010 rating decision. This VA examination is new and material evidence regarding the Veteran's service-connected PTSD. See 38 C.F.R. § 3.156(b) (2013). The submission of new and material evidence within the one-year appeal period following the notification of the September 2010 rating decision serves to abate the finality of that decision. See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (holding that appellant submissions of new and material evidence within one year after the date of mailing of an RO decision prevents the determination from becoming final). Accordingly, although the Veteran indicated in his October 2011 notice of disagreement (NOD) that he was disagreeing with the January 2011 rating decision which increased the rating for his PTSD to 50 percent, the Board has characterized the issue on appeal as reflected on the title page. In August 2013 the Veteran testified during a Board hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of the hearing is of record. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that was considered by the RO in the October 2012 statement of the case (SOC). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran was most recently afforded a VA examination to evaluate his PTSD in December 2010. The Veteran indicated during his August 2013 hearing that his PTSD had gotten worse. Accordingly, he should be afforded a new VA examination to evaluate the current severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (1995). The record also reflects that there are outstanding pertinent VA treatment records. In this regard, the Veteran reported during the August 2013 hearing that he saw his VA psychiatrist every four months. The most recent VA treatment records currently available for the Board's review are dated in October 2012. Any more recent pertinent VA treatment records should be obtained on remand. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for treatment records from the VA North Texas Health Care System, to include the Dallas VA Medical Center (VAMC), dated since October 2012. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination to evaluate his PTSD. In conjunction with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. The examiner should specifically address the level of social and occupational impairment attributable to the Veteran's PTSD. The examiner should provide a multi-axial diagnosis, including assignment of a GAF scale score that represents the level of impairment due to the Veteran's PTSD, and an explanation of what the score means. The examiner should set forth all examination findings, along with a complete rationale for any conclusions reached, in a printed (typewritten) report. 3. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) 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 matter that 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. 2013). _________________________________________________ KELLI A. KORDICH 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) (2013).