Citation Nr: 1331419 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-06 404 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected psychiatric disability, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision in which the RO awarded service connection for PTSD and assigned an initial rating of 30 percent, effective from May 6, 2009 (the date the claim was received). The Veteran filed a notice of disagreement with the initial rating in October 2009. The RO issued a statement of the case in February 2012. The Veteran filed a substantive appeal (via a Form 9, Appeal to Board of Veterans' Appeals) in March 2012. Because the Veteran disagreed with the initial rating assigned following the award of service connection for his PTSD, the Board 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 an already service-connected disability). As explained in more detail, below, the Board has also characterized the appeal as encompassing the matter of entitlement to a TDIU due to service-connected PTSD, consistent with Rice v. Shinseki, 22 Vet. App. 447 2009). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. At the outset, the Board notes, as indicated above, that, the record reasonably raises the matter of the Veteran's entitlement to a TDIU as s component of the claim for higher rating for PTSD, and he has submitted evidence that could reasonably be construed as evidence of unemployability prior to and during the pendency of his appeal. Psychologist Dr. Anderson noted in the April 15, 2009 psychological examination report that the Veteran was laid off in October 2008 from a job he held for 32 years, and noted in the summary and recommendations section that the Veteran's "difficulties with impulse control, as evidenced by his difficulty with irritability, and his angry outbursts, were quite evident and likely to substantially negatively impact his employment." Clinical psychologist Dr. Stewart noted in a March 6, 2012 psychological assessment that "the patient's ability to sustain work involving concentration is impaired by cognitive and emotional overlay." Later notes do not indicate that the Veteran resumed working. The record includes a note that the Veteran "tended to busy himself by painting his home and maintaining his four rental properties" according to a July 25, 2012 psychological evaluation by Dr. Anderson. The Board notes, however, that the RO has not adjudicated the claim for a TDIU due to PTSD. Accordingly, after giving the Veteran an opportunity to file a formal claim for TDIU due to PTSD, and accomplishing further action that may bear on this matter (as noted below), the RO should adjudicate the matter, in the first instance, to avoid any prejudice to the Veteran. The claims file reflects that there may be pertinent, outstanding medical records. Although the Veteran informed the RO in his May 2009 claim form that he had been treated by licensed psychologist Dr. Anderson since April 2009, and later evidentiary submissions by the Veteran identify clinical psychologist Dr. Stewart as a private medical treatment provider for PTSD, the record does not reflect that the RO made reasonable efforts to obtain all relevant records from these providers. The claims file includes medical records submitted by the Veteran, but the records themselves mention treatment visits and indicate long-term treatment that is not in the record. More specifically, the Veteran submitted records from Dr. Anderson including an April 15, 2009 psychological examination, a psychological evaluation dated July 23, 2010 and denoted as an "update assessment," session documentation dated December 1, 2010, and a July 25, 2012 psychological evaluation also denoted as an "update assessment." The July 23, 2010 psychological evaluation noted that the Veteran had previously had another "update" on November 16, 2009, but the November 16, 2009 record was not included in the record. The December 1, 2010 session documentation included a note that the Veteran agreed to begin attending a PTSD support group two weeks after the date of the session, but there was no treatment notes after that date concerning support group attendance. The record did not include any letters from the RO to the Veteran requesting authorization to obtain records from Dr. Anderson that appear to be relevant to the claim. As such, remand is required to obtain authorization and secure these records. As for evidence related to Dr. Stewart, the record includes a psychological assessment dated March 6, 2012 that indicated that the Veteran "remained under [his] care" and had been referred by his primary care physician for PTSD treatment. In addition, the July 25, 2012 "update assessment" from Dr. Anderson discussed the Veteran's treatment with medication prescribed by Dr. Stewart for his PTSD, as Dr. Stewart treated the Veteran "on a monthly basis for approximately 18 months." However, review of the record does not reveal 18 months of treatment records from Dr. Stewart. The record did not include any letters from the RO to the Veteran to obtain authorization to request records from Dr. Stewart that appear to be relevant to the claim. Thus, on remand, the RO should undertake appropriate action to secure these records. The Board further notes that the evidence indicates that the Veteran's psychiatric impairment may have worsened since his most recent VA examination in August 2009. For instance, reported Global Assessment of Functioning (GAF) scale scores decreased from the score of 63 assigned by the August 2009 VA examiner to the score of 48 noted in the last "update assessment" by Dr. Anderson in July 2012. Further, the record indicates that Dr. Stewart diagnosed major depression and generalized anxiety disorder, both secondary to the Veteran's PTSD in March 2012, whereas the August 2009 VA examiner only noted PTSD. Since VA is authorized to obtain reexaminations whenever VA determines there is a need to verify the current severity of a disability, reexamination of the Veteran is warranted. Along with providing, among other things, clinical findings, with respect to the Veteran's psychiatric symptoms, the examiner should also render an opinion addressing the Veteran's employability. 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 claim for higher rating should include consideration of whether any staged rating (assignment of different ratings for distinct periods of time, based on the facts found) , pursuant to Fenderson (cited above), is appropriate. The RO should also adjudicate whether a TDIU due to service-connected psychiatric disability is warranted at any time since the award of service connection for PTSD, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940 to enable him to file a formal application for a TDIU due to service-connected lumbar psychiatric disability. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide the full name and address of each medical provider who has treated him for psychiatric disability, including Dr. Anderson, Dr. Stewart, and any provider that has treated the Veteran in a group setting. Ask the Veteran to specify whether each provider is a VA or private medical provider, and to identify the year(s) of treatment. Specifically request that the Veteran furnish appropriate authorization to obtain all outstanding, pertinent, private medical records, to include those from the above-referenced providers. Inform the Veteran of the information and evidence needed to support a claim for a TDIU due to service-connected psychiatric disability. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims 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 and his representative 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, arrange for the Veteran to undergo VA examination by an appropriate mental health professional (preferably, a psychiatrist or psychologist) at a VA medical facility. The entire claims file, to include a complete copy of the 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. The examiner should render specific findings with respect to the existence and extent (and/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; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The examiner should render a multi-axial diagnosis, including assignment of a GAF score that represents the level of impairment due to the Veteran's PTSD (and, if appropriate, any other secondary or associated psychiatric disability(ies)), and an explanation of what the score means. If the examiner diagnoses psychiatric disability(ies) other than PTSD that is/are not deemed to be secondary to or associated with PTSD, the examiner should indicate whether it is medically possible to separate the symptoms and effects attributable to each. The examiner should also indicate whether, at any point(s) since the May 2009 effective date of the award of service connection for PTSD, the record reflects any change(s) in the severity of the Veteran's psychiatric impairment; and, if so, the level of severity of psychiatric impairment at each stage. Further, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disability(ies), it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service- connected psychiatric disability(ies) render him unable to obtain or retain substantially gainful employment. All examination results, along with complete rationale for the conclusions reached, should be set forth in a printed (typewritten) examination report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file copies of any notices of the date and time of the examinations sent to him by the pertinent VA medical facility. 6. 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). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims for a higher, initial rating for service-connected PTSD, and for a TDIU due to service-connected psychiatric disability in light of all pertinent evidence and legal authority. In connection with the higher rating claim, specifically consider whether any staged rating, pursuant to Fenderson, is appropriate; and, with respect to a TDIU, whether the procedures of 38 C.F.R. § 4.16(b) for an extra-schedular TDIU are invoked). 8. 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-to particularly include section 4.16(b)-along with clear reasons and bases for all determinations, and afford them the opportunity to respond before the claims file is returned to the Board. 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 benefits 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). 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).