Citation Nr: 1334770 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-29 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from August 1987 to June 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted service connection for PTSD and assigned a 30 percent disability rating, effective April 27, 2006. The Veteran submitted a Notice of Disagreement (NOD) with this determination in May 2009, and timely perfected his appeal in August 2009. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claim of entitlement to an initial disability rating in excess of 30 percent for PTSD. The Veteran contends that his PTSD is worse than the 30 percent disability evaluation assigned. The Veteran was last given a VA examination in August 2007 in order to establish the severity of his service-connected PTSD. In May 2009, the Veteran submitted multiple statements detailing his PTSD symptoms. He experienced anxiety and panic attacks on a daily basis, often several times a day. Sometimes the anxiety and panic attack were so severe that he developed hives. Additionally, he felt better around fewer people because he was able to control his environment and protected his family. He reported problems with day-to-day tasks at his job. His family had to constantly remind him of conversations they just had. He also had several episodes where his anger had severely impaired his judgment both at home and work. He had a work disciplinary action in April 1997, where he was terminated due to physical assault. He reported conflicts with co-workers at every facility he worked at over the years. He did not trust his co-workers or supervisors, and interacted with them as minimally as possible. Additionally, in a February 2009 statement, the Veteran reported having felt several times that ending his life would be the best situation for him. He reported being admitted to the Charter Behavioral Center for "suicidal gestures." On a daily basis before bed, he checked the perimeter of his house twice, to make sure it is secure. He also indicated that he experienced nightmares and flashbacks. Furthermore, in the September 2013 Appellate Brief, the Veteran's representative asserted that the August 2007 VA examiner's determination did not accurately reflect the Veteran's symptoms noted on examination or the Veteran's mental health history. In this particular case, the August 2007 VA examination and February and May 2009 statements detailing the Veteran's PTSD symptoms are too remote in time to address the current severity of the Veteran's service-connected PTSD. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). A remand is also necessary to obtain outstanding VA and private medical records. The record contains an August 2006 letter from the Veteran's private treating therapist, who reported that the Veteran was receiving weekly individual treatment for his PTSD from May 30, 2006 to the present. However, it does not appear that these private treatment records have been obtained and associated with the claims file. Further, it is unclear if the Veteran continued to receive either VA or private treatment for his PTSD after that time. Because it appears that there may be outstanding VA and private medical records that may contain information pertinent to his claim, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain all outstanding VA treatment records. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The RO should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his PTSD, to include with Mary Tendall, LMFT. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2) After obtaining any available treatment records, the Veteran should be scheduled for a new VA examination to determine the current level of severity of his service-connected PTSD. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary testing should be provided. The examiner should discuss the current severity of the Veteran's PTSD, with particularity to the criteria for the diagnostic code (DC 9411). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim. The AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise 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). _________________________________________________ WAYNE M. BRAEUER 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).