Citation Nr: 1334575 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-13 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran had active military service from August 1968 to November 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2009 rating decision, in which the Regional Office (RO) granted service connection to the Veteran for PTSD at an initial rating of 30 percent, effective January 16, 2009. In September 2009, the Veteran's representative submitted a "claim" for entitlement to an increased rating for service connected PTSD, which did not express any disagreement with the June 2009 rating decision. Meanwhile, the Veteran submitted new psychiatric records in support of his increased rating. Subsequently, in December 2009, the RO continued the 30 percent rating for the Veteran's service-connected PTSD. That month, the Veteran filed a notice of disagreement (NOD), disputing the continuation of the 30 percent rating. The RO issued a statement of the case (SOC) in March 2010, and the Veteran filed a Form 9 to perfect his appeal in April 2010 along with additional statements concerning his claim. In August 2010, the RO issued a supplemental statement of the case (SSOC), in which the RO reconsidered the Veteran's claim in light of his recent statements and continued the 30 percent rating for PTSD. The Board finds that the June 2009 rating decision is not final and is properly on appeal because the Veteran submitted additional evidence (lay statements and pertinent medical records) that is new and material to his claim prior to the expiration of the appeal period. See Buie v. Shinseki, 24 Vet. App. 242, 251-252 (2011) (holding that evidence submitted to the regional office within one year of the regional office decision requires "any subsequent decision based on such evidence [to] relate back to the original claim"); see also Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed.Cir.2011) (holding that, to satisfy § 3.156(b), "new and material evidence [must] be treated as having been filed in connection with the pending claim," not as a submission of a new claim). 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 Although the Board regrets the additional delay, the Veteran's claim for an increase of his initial rating for PTSD requires further development before being decided. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The most recent PTSD examination of the Veteran was in July 2010. After the RO issued a supplemental statement of the case (SSOC) in August 2010, the Veteran and his representative submitted additional evidence or argumentation. In particular, one submission from the Veteran, received by VA in December 2010, contained lay statements of his PTSD symptoms, which the Veteran is competent to report. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Notably, these statements reference symptoms or complaints reported by the Veteran that are new and have not been considered in previous VA examinations. VA's duty to assist includes providing a new medical examination where evidence indicates there has been a material change in a disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); 38 C.F.R. § 3.327(a); VAOPGCPREC 11-95 (1995). Thus, the Board concludes that remand is necessary to afford the Veteran a VA examination to assess these newly reported symptoms and assess the severity of his PTSD. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examination report should include discussion of the Veteran's documented medical history and all of his assertions. All appropriate tests and studies should be accomplished, to include psychological testing, if deemed warranted. Findings from all tests and/or studies must be made available to the requesting examiner prior to completion of his or her report. The examiner should address the following: a). Identify all symptoms associated with the service-connected PTSD. b). For each symptom identified, state the impairment it causes concerning the Veteran's social and occupational adaptability. c). Assign a Global Assessment of Functioning (GAF) score as it pertains to the Veteran's service-connected PTSD only. Thereafter, explain the score's meaning. The examiner should set forth all examination findings, together with the complete rationale for all opinions expressed, and indicate the level of severity of the Veteran's PTSD. 2. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims; and that the consequences for failure to report for a VA examination without good cause may include denial of one or more of his claims. 38 C.F.R. § 3.655 (2013). 3. Then, after completing any further development as may be indicated by any information or evidence received, readjudicate the Veteran's claims based on the entirety of the evidence. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. 2013). _________________________________________________ MARJORIE A. AUER 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).