Citation Nr: 1330988 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-05 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 2003 to April 2008. He twice received the Purple Heart for injuries sustained in combat. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for PTSD, claimed as anxiety and adjustment disorder, post concussion syndrome, memory loss, and residuals of head injury (traumatic brain injury (TBI)) with loss of consciousness, and assigned a 30 percent rating, effective April 8, 2008. In March 2009 the Veteran submitted a VA Form 21-4138 which indicates that he wished to request an increase in his disability rating for PTSD and that he wanted his TBI be rated as a separate disability. Also in March 2009, additional VA treatment records were obtained. Although the RO construed the Veteran's March 2009 statement as a claim for an increased rating and not a notice of disagreement, the Board finds that the Veteran's March 2009 statement is reasonably construed as a notice of disagreement with the August 2008 rating decision. 38 C.F.R. § 20.201 (2012). Additionally, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Therefore, based on the additional pertinent VA treatment records dating through March 2009 which were added to the record in March 2009, the Veteran's claim is on appeal from the August 2008 rating decision granting service connection for PTSD. In the May 2012 VA Form 646, the Veteran's representative indicated that the Veteran wished to strike all information contained on page two of his January 2012 VA Form 9. Page two of the Veteran's January 2012 VA Form 9 states that the Veteran would like his residuals of TBI to be evaluated separately from his PTSD. In addition to granting service connection for PTSD, the August 2008 rating decision granted service connection for post concussion headaches with chronic dizziness and intermittent vertiginous sensations, and assigned a 10 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8045, the diagnostic code for rating residuals of TBI, effective April 8, 2008. Moreover, in a March 2013 rating decision, the RO granted an increased rating of 30 percent for post concussion headaches with chronic dizziness and intermittent vertiginous sensations, effective from November 20, 2012. Therefore, the issue of whether the Veteran's residuals of TBI should be rated separately from his PTSD is not currently before the Board. In his January 2012 VA Form 9, the Veteran requested a Travel Board hearing. However, in the May 2012 VA Form 646, the Veteran's representative indicated that the Veteran no longer wished to have a Travel Board hearing. As such, the hearing request is considered withdrawn. 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 VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Weggenmann v. Brown, 5 Vet. App 281 (1993). The Veteran contends that his service-connected PTSD is more severe than is contemplated by the currently assigned 30 percent rating. Specifically, in a September 2012 statement the Veteran indicated that he has panic attacks three to four times a week, constant depression, uncontrollable physical and verbal outbursts with friends, family and strangers, memory loss, and suicidal thoughts. He also indicated that he acts inappropriately at times. The Veteran's most recent VA examination was conducted in November 2011. At that time, the examiner indicated that the Veteran's only diagnosis was anxiety disorder, not otherwise specified. The examiner indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. In this regard, although the examiner recognized the Veteran's reported symptoms of avoidance of trauma reminders, emotional numbing, blunted affect, feeling detached from others, insomnia, irritable outbursts, and hypervigilance, it was noted that the Veteran did not describe symptoms of reexperiencing. The examiner found that the only applicable symptoms the Veteran currently had were depressed mood and anxiety. The examiner found that the Veteran did not have panic attacks, near-continuous panic or depression, impaired impulse control, or suicidal ideation. Moreover, the examiner opined that although a mental condition had been formally diagnosed, the symptoms were not severe enough to interfere with occupational and social functioning. The Veteran's GAF score was reported to be 68. The Veteran previously underwent a VA examination in April 2009. The April 2009 VA examination report reflects that mental status examination revealed depressed mood, panic attacks once or twice a week, suspiciousness (but no delusions or hallucinations), moderate memory impairment, social withdrawal, moodiness, and near continuous depression that does not affect the Veteran's ability to function independently but does cause unprovoked irritability and affects his motivation and mood. His GAF score was noted to be 60. The Veteran continued to report anxiety attacks at a VA mental health outpatient appointment in September 2009 and a May 2011 VA mental health outpatient note indicates that the Veteran reported a lot of panic attacks. In May 2011, the Veteran's Effexor was increased and a benzodiazepine was added temporarily to help quell his attacks. He also reported in May 2011 that his work was being affected and that he was written up for his anger-related actions at work. Despite the VA treatment records showing an increase in reported panic attacks since April 2009, despite the memory impairment, suspiciousness, and unprovoked irritability found at the April 2009 VA examination, and despite the GAF score of 60 in April 2009, the November 2011 VA examination report reflects only depression and anxiety symptoms and a higher GAF score of 68. Therefore, while the Veteran has indicated his symptoms have worsened, and the VA treatment records generally show some worsening symptoms, the VA examination in November 2011 essentially shows improvement since the April 2009 VA examination. Moreover, the Veteran's September 2012 statement generally reflects a worsening of symptoms since the November 2011 VA examination. Therefore, a new examination is required in order to accurately assess the current severity of the Veteran's PTSD. The Veteran receives treatment for his PTSD through VA. The record contains VA treatment records from the VA Medical Center in Houston, Texas, dating through May 2011. As such, the Veteran's VA treatment records dating from May 2011 to the present should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, in the September 2013 Appellant's Brief, which was submitted by the Veteran's representative, it is indicated that the Veteran's wife submitted a statement in September 2013. While the record contains a September 2012 VA Form 21-4138 typewritten statement signed by the Veteran's wife, it is duplicative of a September 2012 VA Form 21-4138 which is signed by and appears to have been authored by the Veteran. The Appellant's Brief indicates that the Veteran's wife stated that the Veteran's problems began in 2008 and that she confirmed the Veteran's suicidal ideation, short temper, panic attacks, and nightmares. Additionally, the Appellant's Brief states that the Veteran's wife indicated that the Veteran "has an extremely short temper and often seems to be a bomb waiting to explode." However, as previously mentioned, the statement signed by the Veteran's wife is identical to the Veteran's September 2012 VA Form 21-4138 statement, and is written in the first person, apparently by the Veteran. It does not contain the referenced quote. Therefore, on remand, it should be clarified whether the correct statement authored by the Veteran's wife has been submitted. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he submit the September 2013 statement from his wife, which is referred to by his representative in the September 2013 Appellant's Brief. 2. Obtain copies of the Veteran's VA treatment records dating from May 2011 to the present from the VA Medical Center in Houston, Texas and any associated outpatient clinic, and associate them with the claims file. All attempts to obtain those records must be documented in the claims file. 3. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his PTSD. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms, conduct a mental status examination in accordance with VA rating criteria, and assign a Global Assessment of Functioning (GAF) score. A complete rationale for all opinions expressed must be provided. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claim on appeal. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental Statement of the Case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).