Citation Nr: 1332749 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-03 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial disability rating in excess of 50 percent prior to July 9, 2009, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Rafael Modet, Attorney ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to June 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Thereafter, the Veteran's file was transferred to the RO in Seattle, Washington, and further, to the RO in Louisville, Kentucky. In a January 2009 rating decision, the RO increased the rating for the Veteran's PTSD to 30 percent, effective March 29, 2007. In a January 2010 rating decision, the RO again increased the rating for the Veteran's PTSD to 50 percent, effective March 29, 2007. However, as those grants did not represent a total grant of benefits sought on appeal, the claim for increase remained before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In December 2010, the Board denied the Veteran's claim for an initial evaluation in excess of 50 percent for PTSD prior to July 9, 2009, however, an increased 70 percent evaluation was granted from July 9, 2009. The Veteran appealed the December 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 memorandum decision, the Court set aside the Board's December 2010 decision and remanded the claim for readjudication consistent with the Court's memorandum decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In his appellate brief to the Court, the Veteran's attorney set forth multiple reasons why the claim should be remanded for obtainment of a new VA examination. Given the need to remand the claim for additional reasons and bases, however, the Court declined to address any argument as to the adequacy of the May 2008 and July 2009 VA examinations of record. Nevertheless, the Board acknowledges that one contention set forth in favor of obtainment of a new VA examination was that the evidence suggested that the severity of the Veteran's PTSD symptomatology went through episodes of increased severity. In an August 2013 statement, the attorney claimed that the Veteran's PTSD symptomatology is of such severity as to warrant the assignment of a 100 percent disability rating throughout the duration of the claim. The Veteran was most recently afforded a VA examination for evaluation of his PTSD in July 2009, more than four years ago. His attorney's statements suggest that his PTSD disability may have worsened. Under these circumstances, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his PTSD disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). In addition, private primary care clinical treatment records from Dr. DC at the office of the MMG are most recently dated in June 2007. Private clinical individual therapy notes from the office of JMA, M.D. Inc., are most recently dated in August 2008. Thus, the RO should take this opportunity to seek the Veteran's assistance in obtaining any outstanding records of pertinent treatment, VA and non VA, and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should seek the Veteran's assistance in obtaining any outstanding records of pertinent VA and non VA treatment dating since March 2006 and associating them with the claims file. The RO should specifically request that the Veteran submit authorization necessary to enable VA to obtain ongoing private treatment records from Dr. DC at the office of the MMG dating since June 2007 and from the office of JMA Inc. dating since August 2008. VA treatment records, if any, dating since March 2006 should also be obtained and associated with the claims file. 2. After all available records have been associated with the record, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected PTSD disability and the impact of his PTSD on his social and occupational functioning. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. After eliciting a complete history of the Veteran's PTSD symptomatology from the Veteran, reviewing the record and examining the Veteran, the examiner should report all findings to allow for application of VA rating criteria for PTSD. In particular, the examiner should provide an opinion as to the current degree of social and industrial impairment resulting from the Veteran's service-connected PTSD disability. The examiner should also provide a Global Assessment of Functioning (GAF) score with an explanation of the significance of the score assigned. The examiner should also identify and discuss any functional impairment caused by the Veteran's service-connected PTSD. The examiner should reconcile any opinion as to the severity of the Veteran's PTSD symptomatology with all other clinical evidence of record, the Veteran's contentions, and the May 2008 and July 2009 examination reports. A complete rationale should be provided for any opinion(s) expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 3. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented their consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. 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 (2012). 5. After completion of any action deemed appropriate in addition to that requested above, readjudicate the issue on appeal. If any benefit sought remains denied, the appellant and his attorney should be provided a supplemental statement of the case and be given appropriate time for response. Thereafter, the case should be returned to the Board, if in order. The appellant 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. C. MACKENZIE 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).