Citation Nr: 1332572 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-16 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial evaluation in excess of 50 percent, for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from February 1969 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 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 Veteran contends that his service-connected PTSD is more severe than is contemplated by the initial assigned 50 percent rating. Specifically, on his VA Form 9, received by VA in April 2010, the Veteran he feels his symptoms more accurately fit into the 70 percent rating category. The Veteran has submitted additional psychological reports in support of his contention. In one report, received by VA in September 2009, the adjustment counselor notes that the Veteran is experiencing an intensification of irritability and anger at work, demonstrated by raising his voice and pounding on a table, which is uncharacteristic behavior for the Veteran. The September 2009 report also states that the Veteran has become more easily distracted and the increased distraction puts him and his subordinates at increased risk for injury. An April 2010 report states, that the Veteran was demoted at work, in part due to absences related to PTSD. The April 2010 report also states that over time, the Veteran is less able to work due to his symptoms. The April 2010 report also notes that when the Veteran was off work due to illness, his PTSD and depressive symptoms improved, but with his return to work they have again steadily worsened. When the evidence indicates that a disability has worsened since the last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). See also Weggenmann v. Brown, 5 Vet. App. 281 (1993). Here, the evidence reflects that the Veteran's PTSD symptoms have increased in severity, thus, a new examination is required. The March 2009 VA examination reflects that the Veteran suffers from PTSD, but he also has symptoms related to panic attacks and depression. The March 2009 VA examination states that the Veteran's depressive symptoms overlap with his PTSD. Thus, the VA examiner must attempt to differentiate the nature or extent of the PTSD as opposed to any other mental disorder. However, the Board emphasizes that if it is not possible to distinguish the effects of the service-connected PTSD alone from any mental disorder, the reasonable doubt doctrine dictates that all psychiatric symptoms be attributed to the Veteran's service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a non service-connected disorder, VA must consider all of the symptoms in the adjudication of the claim). The evidence shows the Veteran has sought psychiatric treatment. Specifically, the Veteran has received treatment from an adjustment counselor Robert Baumgardner. Thus, the necessary authorization should be obtained from the Veteran and any additional records, since April 2010, from this provider should be attempted to be obtained and associated with the claims folder. 38 C.F.R. § 3.159(c)(1). Additionally, it appears that the Veteran receives regular treatment at the VA community based outpatient clinic (CBOC) in Ukiah, California. Updated treatment records, since June 2009, should be obtained. This includes a Virtual VA medical record that is referenced in the supplemental statement of the case (SSOC), with treatment dates of July 2009 to August 2012, which should be configured to display the actual contents electronically, or printed and associated with the claims file. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Obtain the necessary authorization from the Veteran and then attempt to obtain additional psychiatric records, since April 2010, from adjustment counselor Robert Baumgardner, and associate them with the claims folder. All attempts to obtain these records must be documented in the claims file. The RO must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505(a), Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2012)). 2. Obtain the Veteran's treatment records, since June 2009, from the VA Medical Center in San Francisco, California and all associated outpatient clinics including the clinic in Ukiah, California, and associate these records with the claims folder. This includes a Virtual VA medical record that is referenced in the SSOC, with treatment dates of July 2009 to August 2012, which should be configured to display the actual contents electronically or printed and associated with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Thereafter, schedule the Veteran for a VA psychiatric examination. The complete record, to include a copy of this Remand, the claims folder and Virtual VA records, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must comment on the frequency and the severity of the psychiatric symptomatology attributable to the Veteran's service-connected PTSD. The VA examiner should expressly state which of the Veteran's psychiatric symptomatology are due to his service-connected PTSD, without regard to any non service-connected psychiatric disorders which may be diagnosed. Furthermore, the VA examiner should provide an opinion as to the Veteran's GAF score due, solely, to his service-connected PTSD without regard to any non service-connected psychiatric disorders which are diagnosed. If it is not possible to make the above distinctions, the VA examiner should state so and indicate the reasons why such distinctions could not be made. A complete rationale for all opinions expressed must be provided. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 or by 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. 2013). _________________________________________________ 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 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)(3) (2012).