Citation Nr: 1337581 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 13-04 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for acute adjustment disorder with mixed mood and conduct. 2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to February 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which granted a 30 percent initial rating for PTSD, and denied service connection for acute adjustment disorder with mixed mood and conduct. 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. Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. REMAND The evidence of record shows that the Veteran was last afforded a VA psychiatric examination on July 2012, at which time his Global Assessment of Functioning (GAF) score was 65. More recently, in October 2012, the Veteran reported experiencing PTSD symptoms related to his tour of duty in Iraq, including a heightened startle response, social isolation, nightmares, intrusive thoughts, avoidance of triggering situations, sleep disturbance, increased appetite with a 40 pound weight gain since February 2012, and concentration problems. A lower GAF score of 45 was assigned, which suggests an increase in the severity of the Veteran's symptoms. Based on the records noted above, the Board finds that the evidence suggests that the Veteran's condition has worsened since his last VA examination. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). With regard to the Veteran's adjustment disorder, the record contains conflicting evidence as to its etiology. The July 2012 Compensation and Pension (C&P) examiner noted that it was possible to differentiate the Veteran's PTSD symptoms from his adjustment disorder with mixed mood symptoms. The VA examiner attributed the Veteran's adjustment disorder symptoms to his domestic assault charges, brought by his ex-girlfriend who claimed that he choked and punched her. However, in a July 2012 letter, the Veteran's psychologist, Dr. W.H.K. stated that the Veteran's account of his altercation with his ex-girlfriend was "quite credible," and that while she was attacking him, he "experienced feelings that he had when under attack in Iraq." The psychologist's assessment was that "what happened was not an instance of domestic assault by [the Veteran] but a defensive response when he felt attacked. I believe that for this reason, the most appropriate treatment is PTSD treatment rather than domestic violence classes." The Board finds that further clarification is necessary as to the etiology of the Veteran's adjustment disorder with regard to his PTSD. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his service-connected PTSD, as well as the etiology of his acute adjustment disorder with mixed mood and conduct. The entire claims folder (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and reviewed by the examiner. If the examiner will not have access to Virtual VA, the RO must print out and associate with the paper claims file any pertinent treatment records contained in the Virtual VA file so they can be available to the examiner for review. All necessary tests should be performed and all findings should be reported in detail. The examiner is asked to: a. Indicate all psychiatric disabilities currently shown; b. Determine all current manifestations associated with the Veteran's service-connected PTSD and to comment on its severity; c. Specifically address the degree of social and occupational impairment caused by the Veteran's PTSD; and d. Clarify whether it is at least as likely as not (50 percent or greater likelihood) that any current adjustment disorder is caused or aggravated (chronically worsened) by the Veteran's PTSD. A current Global Assessment of Functioning (GAF) score should also be provided. Any findings should be reconciled with the July 2012 VA examination report, the October 2012 VA Lincoln Division treatment records, as well as the July 2012 letter from the Veteran's psychologist, Dr. W.H.K. A complete rationale for all opinions expressed should be provided, to include if the examiner determines an opinion cannot be provided without resorting to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an examiner's report that he or she cannot provide an opinion without resorting to speculation is inadequate unless the examiner provides a rationale for that statement). 2. Thereafter, the RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the RO should review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing any additional development deemed necessary, the RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the issues remain denied, the Veteran and his attorney must be provided a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ MILO H. HAWLEY 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).