Citation Nr: 1338491 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-13 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and major depression. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted service connection for PTSD and major depression and assigned an initial 10 percent rating effective from January 12, 2011 (the date VA received his claim). The Veteran appealed with respect to the propriety of the initially assigned rating. During the course of the Veteran's appeal, an April 2012 rating decision increased the 10 percent rating to 50 percent, effective January 12, 2011. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2013, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals VA treatment records dated through November 2012, which were considered by the agency of original jurisdiction (AOJ) in the November 2012 supplemental statement of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). As an initial matter, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his PTSD and major depression. In this regard, he was most recently afforded a VA examination in March 2012. Since such time, however, the Veteran has testified to an increase in PTSD symptomatology, such as dreams/nightmares that have become more frequent and vivid; an increase in anxiety; increase in rituals in that he performs nightly checks of all of his windows; an increase in anger and irritability; memory difficulties; social isolation, except for family; and auditory and visual hallucinations. The Veteran further testified that his psychiatric disability would impact him in an occupational setting in that he would want to "whack at somebody." In sum, while the Veteran was most recently examined last year, as he has testified to an increase in severity since that time, the Board finds an updated VA examination is needed in order to fully and fairly evaluate the claim on appeal. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, during the hearing, the Veteran testified that he is seen at the Lexington VA by Dr. L., a psychiatrist, and, in fact, had an appointment later that week. He indicated that all of his treatment is through VA. Upon review of the Veteran's claims file, to include Virtual VA, only VA treatment records dated through November 2012 are of record. As such, VA treatment records from Lexington VA dated from November 2012 to the present should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from Lexington VA dated from November 2012 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his PTSD and major depression. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD and major depression. The examiner should also specifically address the impact such disability has on the Veteran's social and occupational functioning, to include whether the PTSD and major depression renders him unemployable. If so, the examiner should indicate the approximate date such disabilities rendered him unemployable. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by information received as a consequence of the action taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).