Citation Nr: 1335906 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-08 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation in excess of 10 percent for service-connected chronic strain of the thoracic and lumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to December 2002. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran was provided with a hearing before the undersigned via live videoconference on July 2013. A transcript of the proceedings has been associated with the claims file. A review of the Virtual VA paperless claims processing system revealed copies of the Veteran's VA outpatient treatment records dated April 2010 to July 2012 and the July 2013 Board hearing transcript. 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, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain current VA examinations for the Veteran's PTSD and back condition. The most recent VA examinations for the Veteran's PTSD and back condition were in January 2008, over five years ago. At his July 2013 Board hearing, the Veteran reported that both his PTSD and back condition had worsened since that examination. He also testified that he had additional symptoms that were not noted in the January 2008 VA examination report. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Because of the length of time since the Veteran's last examination, and his testimony of additional and worsening symptoms, a contemporaneous examination is needed to ascertain the current severity of both his PTSD and back condition. Further, the Veteran indicated that he is not currently working and appears to attribute this to his PTSD. The Veteran reported at his 2013 Board hearing that he had not worked since 2007. At his January 2008 VA examination, the Veteran indicated that he had not worked in over a year due to his psychiatric symptoms. To this effect he also indicated that he had been fired from his last job due to an inability to manage his tasks, poor interpersonal relations with customers and co-workers, and getting into arguments. The 2008 VA examiner opined that the Veteran was not totally occupationally and socially impaired as a result of his PTSD. However, he did note that based on the Veteran's presentation during the interview and his history of irritability, it is likely that the Veteran's psychiatric symptoms have contributed to his termination from jobs and training programs. An updated opinion on the Veteran's employability is needed as well. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to 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 any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of his PTSD and to evaluate the impact of PTSD on his employability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must conduct all indicated tests and studies, report all pertinent findings, and estimate the Veteran's current GAF Scale score. The examiner must also opine as to whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD, without regard to his age or any nonservice-connected disabilities. In doing so, the examiner is asked to consider the findings of the 2008 VA examination regarding the likelihood of the Veteran's psychiatric symptoms causing his termination from jobs and training programs as well as the Veteran's statements regarding his reasons for unemployment. If necessary, reconcile this finding with the current examination findings. If the examiner opines that the Veteran's PTSD does not render him unemployable, the examiner must suggest the type or types of employment in which he would be capable of engaging, given his current skill set and educational background. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination reports. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. The Veteran should also be scheduled with an appropriate in-person examination to determine the current severity of the chronic strain of the thoracic and lumbar spine. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must also do the following: (a) Describe all orthopedic and neurological impairment associated with the Veteran's thoracic and lumbar spine disability. (b) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (c) The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (d) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (e) The examiner should note whether any intervertebral disc syndrome that may be present in the thoracolumbar spine results in incapacitating episodes, and indicate the total duration of any episodes. (f) The examiner should also provide an opinion concerning the impact of the disability on the Veteran's ability to work. The rationale for all opinions expressed should also be provided. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA A. SMITH 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).