Citation Nr: 1337469 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-17 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for PTSD and assigned an initial 10 percent disability rating for the Veteran's PTSD. The Board notes that the electronic record in Virtual VA contained a misfiled document, specifically a brief dated in September 16, 2013, addressing another Veteran's claim. It does not appear that this brief was relied upon by the RO in any of its adjudications, and it has no bearing on the present actions of the Board. Thus any error created by the submission of this brief is harmless. The Board notes that the most recent brief addressing the Veteran's claim was submitted in November 2011 after the matter was certified before the Board. A VA 21-526 EZ claim of service connection for an Agent Orange disability claimed as secondary to PTSD was submitted in the VBMS dated in July 2013. This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claim of an increased initial disability rating in excess of 10 percent for PTSD. The Veteran was last given a VA examination in December 2008 in order to establish the severity of his service-connected PTSD. In the November 2011 Written Brief Presentation, the Veteran's representative stated the Veteran was entitled to a current examination on the increased rating claim for his service-connected PTSD, if the Board did not find the current evidence warranted an increased rating. It was also pointed out that the Veteran had advised the VA in September 2009, he had a PTSD screening at the Knoxville Vet Center in August 16, 2007 that the VA never obtained. In this particular case, the December 2008 VA examination is too remote in time to address the current severity of the Veteran's service-connected PTSD. See 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. Furthermore, although the VA appears to have obtained some Vet Center records, it still has yet to obtain this August 16, 2007 PTSD screening, which may be relevant to the Veteran's claim for an increased initial rating for his PTSD. Such records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus on remand, the Veteran's Vet Center treatment records should be associated with his claims file. Additionally an attempt should be made to obtain any recent VA or private treatment records, as the most recent records are dated in 2010. Accordingly, the case is REMANDED for the following action: 1. The AMC should obtain any of the Veteran's outstanding VA treatment records dated from April 2010 to the present and any pertinent records from the Vet Center, to include the PTSD screening at the Knoxville Vet Center in August 16, 2007. Any attempts to obtain these records and responses received thereafter should be associated with the appellant's claims file. The appellant should also be offered the opportunity to submit any private treatment records in support of his claim. 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 write a comprehensive report discussing the current severity of the Veteran's PTSD, with particularity to the criteria for the appropriate diagnostic codes. Furthermore, the examiner should also specifically comment on the effects of the Veteran's PTSD on his occupational functioning and daily activities. The examiner should opine as to whether the Veteran's service-connected disability (PTSD) renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 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. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If a claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the issue should be returned to the Board for further 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). 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). _________________________________________________ Thomas J. Dannaher 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).