Citation Nr: 1332489 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-27 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and adjustment disorder with depression. 2. Entitlement to an evaluation in excess of 10 percent for the residuals of right ankle injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of February 2007 and May 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. For reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the Veteran's claimed psychiatric disability, as well as the current severity of his service-connected right ankle injury. In that regard, it would appear that, based on a review of the file, the Veteran last underwent a VA examination for the purpose of determining the severity of his service-connected right ankle disability in October 2010, at this point, almost three years ago. Significantly, at the time of that examination, the examiner apparently did not have access to the Veteran's claims folder. Under the circumstances, the Board is of the opinion that an additional, more contemporaneous VA examination would be appropriate prior to a final adjudication of the Veteran's claim for increase. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Board additionally observes that, at various points during the current appeal, and, most recently, during the course of a VA psychiatric examination in November 2010, the Veteran indicated that he had in the past and was currently receiving Social Security disability benefits, at least in part due to depression. Significantly, where (as in this case), VA has actual notice that the Veteran is receiving disability benefits from the Social Security Administration, and such information is arguably relevant, the duty to assist requires VA to obtain a copy of the decision and any supporting medical records upon which the award was based. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, in light of the aforementioned, and in deference to the request of the Veteran's accredited representative, the case is REMANDED to the AMC/RO for the following actions: 1. The AMC/RO should contact the Social Security Administration, with a request that they provide a copy of the decision concerning the Veteran's claim for Social Security disability benefits. Any medical records utilized in the award of Social Security benefits should likewise be requested. Once obtained, all such information and records should be made a part of the Veteran's claims folder. All attempts to obtain records should be documented in the claims folder. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to September 2011, the date of the most recent evidence of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problems. 3. The Veteran should then be afforded an appropriate VA examination in order to more accurately determine the current severity of his service-connected right ankle disability. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examination, and in accordance with the latest worksheets for evaluating disabilities of the ankles, the examiner is to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of the service-connected right ankle injury. In particular, the examiner should specifically comment regarding any and all limitation of motion (including additional limitation of motion following repetitive use resulting from pain, weakness, fatigue, a lack of endurance, and/or incoordination). The examiner should also discuss factors associated with disability, such as objective indications of pain on pressure or manipulation. Finally, the examiner should inquire as to whether the Veteran experiences flare-ups associated with his service-connected right ankle injury. To the extent possible, any additional functional loss or limitation of motion attributable to such flare-up should be described. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 4. The AMC/RO should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the AMC/RO must implement corrective procedures. 5. The AMC/RO should then readjudicate the Veteran's claim for service connection for an acquired psychiatric disorder (to include posttraumatic stress disorder and an adjustment disorder with depression), as well as his claim for an evaluation in excess of 10 percent for the service-connected residuals of right ankle injury. If records obtained indicate that additional development of the service connection claim is indicated, such development should be accomplished. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in January 2011. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ MICHAEL D. LYON 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).