Citation Nr: 1333367 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-27 747A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued a 30 percent evaluation for PTSD. In October 2008, the evaluation was increased to 50 percent from December 15, 2007. In July 2011, the Board, in pertinent part, granted a 50 percent rating for PTSD prior to December 15, 2007 and denied an evaluation in excess of 50 percent. In a March 2012 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion by counsel for the Veteran and VA to vacate and remand that part of the Board's July 2011 decision that denied a rating in excess of 50 percent for PTSD. In October 2012 and May 2013, the Board remanded the claim for further development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND After carefully considering the record, the Board finds that the appeal must be remanded for further development. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The parties to the Joint Motion agreed that VA erred in failing to satisfy its duty to assist. In this regard, the parties noted that records from the Veteran's previous employer, Belton Independent School District (BIDS), were incomplete. The record contained a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, indicating that the Veteran's employment had been terminated because he had "too many absences due to health issues." The parties also noted that the record contained "a smattering" of documents that the Veteran submitted regarding his employment and termination. However, the parties found that these documents did not appear to be the complete record of the Veteran's employment with, and termination from, the school district. The parties to the Joint Motion agreed that additional employment records were potentially relevant to the Veteran's claim for an increased rating for PTSD because they may relate to his occupational functioning, including his ability to adapt to stressful circumstances at work or in a work-like setting. See Joint Motion, at 3 (citing 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411). Pursuant to its duty to assist, the parties noted that VA must make reasonable efforts to obtain these records, citing 38 C F R § 3 159(c)(1). It was directed that such efforts should consist of an initial request, and if the records or a response indicating that such records were unavailable was not received, a follow-up request. See id. In October 2012, the Board directed the AMC to contact BIDS and request all records relating to the Veteran, in accordance with the Joint Motion. In November 2012, BIDS responded. The employer completed a VA Form 21-4192, which indicated that the appellant was terminated "[d]ue to failure to return to work after the expiration of applicable leave." Regarding time lost, it was noted that an absence log was attached, but that the reason for absences was unknown. The employer additionally submitted a "Concise Check History Report," which appeared to reflect pay stubs covering the limited period of June 2007 to May 2008. In May 2013, the matter was returned to the Board. The Board determined that the records received were incomplete and did not include the information contemplated by the parties to the Joint Motion. The Board observed that the Veteran was employed from September 1998 to May 2008. In an effort to ensure compliance with the Joint Motion, the Board found that additional efforts should be made to obtain complete employment records. See 38 C.F.R. § 3.159(c)(1) (2013). Initially, the Board notes that it appears the May 2013 remand was not received by the Veteran. The file reflects that the remand was sent to an old address, and was returned. This document should be re-mailed to the Veteran at his recently obtained new address. Additionally, the AMC did not contact the Veteran's previous employer to request the employment records, to specifically include "all personnel records such as performance evaluations and attendance sheets," as requested by the Board. Rather, in May 2013, the AMC sent a letter to the Veteran, asking him to submit the information. Given the Court's concerns involving these records, the Board finds that one, final attempt should be made to obtain them directly from the Veteran's previous employer. The Board recognizes that BIDS might require new authorization from the Veteran prior to submitting the records. In this event, such authorization should be requested, as was contemplated by the Board in its May 2013 remand directives. Finally, the Board notes that the Veteran was last afforded a VA examination in connection with this claim in December 2007. As such, it has been nearly six years since he was last examined. The Board finds that a more recent VA examination, based on a full review of the claims file, is needed to fully and fairly evaluate the Veteran's claim for increased rating. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of 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); VA should afford the Veteran a contemporaneous examination to assess the current nature, extent, and severity of his PTSD. 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. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. Resend the May 2013 Board Remand to the Veteran at his current address. 2. Contact the Belton Independent School District and request complete records relating to the Veteran's previous employment with the listed school district, following the procedures for requesting private records in 38 C.F.R. § 3.159(c)(1). This should include, but not be limited to, all personnel records such as performance evaluations and attendance sheets. If an authorization is needed from the Veteran, it should be requested. If the records cannot be obtained, provide the Veteran with notice consistent with 38 C.F.R. § 3.159(e), pertaining to the duty to notify claimants of inability to obtain records. 3. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the electronic claims file. 4. The Veteran should 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 (2013). 5. After completing all indicated development, the RO then should readjudicate the appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ H. N. SCHWARTZ 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) (2013).