Citation Nr: 1331540 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 08-30 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned at a October 2012 Video Conference hearing. The hearing transcript is of record. In a December 2012 decision, the Board denied the Veteran entitlement to a disability rating in excess of 70 percent for his service-connected PTSD. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). By June 2013 Order, the Court vacated the portion of the Board's December 2012 decision that denied the Veteran a disability rating in excess of 70 percent for his PTSD, and remanded the matter to the Board for compliance with instructions contained in a Joint Motion for Partial Remand of the parties. The case has been returned to the Board for further appellate action. The Board notes that the Veteran has submitted additional evidence, which has not yet been considered by the RO. See September 2013 statement from the Veteran. However, the AOJ will have an opportunity to consider this additional evidence while the appeal is being considered on remand. 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 VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103S; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4). In the Joint Motion for Partial Remand noted above, the parties agreed that the January 2008 VA examination is inadequate because the Veteran alleges that his symptoms have worsened since this examination, which was conducted over five years ago. In this regard, during his most recent VA examination in January 2008, the Veteran denied suicidal or homicidal ideation, and it was noted that he was employed at that time. However, in an October 2012 statement, the Veteran's wife reported that the Veteran's PTSD symptoms had worsened, and that she believed he was suicidal. In addition, during his October 2012 hearing, the Veteran testified that his symptoms had worsened since his last examination in January 2008. Furthermore, in a recently submitted statement, received in September 2013, the Veteran reported that since December 2009, he has been unable to work due to his service-connected disabilities, specifically, his PTSD. He also reported that it was unlikely that his condition would show any measurable improvement, and that since his original rating his condition had worsened. The Veteran also requested that he be awarded a total disability rating without him having to undergo any further examination. The Board notes that the Veteran's claim for a total disability rating was remanded by the Board in the December 2012 decision and remand, and is not currently before the Board at this time. 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 Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of the Veteran's PTSD. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined the Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of a Claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The appellant is advised that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current severity of his service connected PTSD. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examiner should obtain a full history of the Veteran's relevant symptomatology and assess the current severity of his psychiatric disorder in accordance with 38 C.F.R. § 4.125 and the DSM-IV. All tests, studies, or evaluations deemed necessary should be performed, and the results should be reported in detail. 2. When the development requested has been completed, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, 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). _________________________________________________ F. JUDGE FLOWERS 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).