Citation Nr: 1331228 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-39 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1966 to May 1968. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2006 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) above. As the Veteran disagreed with the initial rating assigned following the award of service connection for PTSD, the Board has characterized this claim 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). During the pendency of the appeal, by statement of the case dated in March 2010, the RO granted a 50 percent rating for PTSD, as of October 18, 2005. However, inasmuch as a higher rating is available for PTSD, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating has remained viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2010, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C, for further action, to include the additional development of the evidence. A review of the Virtual VA claims file reveals documents which are either duplicative of those already in the claims file or not pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. The Veteran filed the instant claim (which was then a claim for service connection) in October 2005. As per the Board's March 2010 remand directives, the Veteran was scheduled for a VA psychological examination in May 2010 to determine the severity of his PTSD. The Veteran did not appear for the scheduled examination and subsequent notation in the claims file from the RO indicates that it was canceling the examination request because the Veteran had failed to report for two scheduled appointments. However, further notations from the RO indicated that two of the Veteran's treatment appointments in May 2010 had been canceled as the provider was "unavailable;" no additional information was provided. Moreover, it is not clear that the Veteran was informed of the scheduled examination as a copy of the letter notifying him of such an examination is not contained in the claims file and is not located in Virtual VA claims processing system. The Veteran's representative also requested that this examination be rescheduled as it was not clear why the Veteran did not appear for the scheduled examination or why the next examination was canceled by the clinic. Based on the foregoing, to ensure the Veteran is afforded all due process with respect to his right to an examination in conjunction with this claim, the Board finds a remand is necessary to afford the Veteran another examination to determine the nature of severity of his service-connected disability. Hence, the RO should arrange for the Veteran to undergo a VA psychiatric examination, by an appropriate examiner, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the claim for an increased rating for PTSD. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, the RO should also obtain and associate with the claims file all outstanding, pertinent records. In this regard, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); 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). The letter should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. 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). As for VA records, the claims file reflects that the Veteran has been receiving treatment for his disabilities from the VA Medical Center (VAMC) in Sheridan, Wyoming, and that records from that facility dated through September 2007 are associated with the file; however, more recent records may exist. 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 a 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 should obtain all records of pertinent treatment from the Sheridan VAMC (since September 2007) for the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. 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 claim on appeal. The RO's adjudication of the claim for higher rating should include consideration of whether "staged rating" of the disability (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate. In connection with the higher rating claim, the RO should also consider and discuss whether the procedures for assigning any higher rating on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1) (2012) are invoked. Accordingly, the case is REMANDED for the following action: 1. 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 claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Also clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 2. 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 (2012). 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. 3. Obtain from the Sheridan VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated from September 2007 to the present. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at a VA medical facility, to determine the current nature and severity of his service-connected PTSD. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's psychiatric disorder, and an explanation of what the score means. Based on review of the Veteran's documented medical history and assertions, the examiner should also indicate whether, at any time since the October 2005 claim, the Veteran's service-connected PTSD has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. Finally, the examiner must comment on the impact the Veteran's service-connected PTSD has on his employability by specifically providing an opinion as to whether it is at least as likely as not that the Veteran's service-connected disability renders him unable to secure and follow substantially gainful employment. If the examiner determines that he or she cannot offer an opinion on the Veteran's employability without a Social and Industrial Survey, such should be performed. All opinions expressed must be accompanied by supporting rationale. 5. If the Veteran fails to report for the scheduled examination, a copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility should be obtained and associated with the claims file. 6. To help avoid future remand, the RO must 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). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal. 8. If the Veteran fails to report to the scheduled examination, in adjudicating the claim for an increased rating, the RO should apply the provisions of the 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim on appeal in light of all pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim) and legal authority as well as with respect to the claim for a higher rating, consideration of whether staged rating, pursuant to Hart (cited above), is appropriate. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes citation to and discussion of all additional legal authority considered along with 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 Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ A.J. TURNIPSEED 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) (2012).