Citation Nr: 1341982 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-02 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for Tourette syndrome. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Brian D. Hill, Attorney at Law ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from January 2007 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. After the most recent supplemental statement of the case was issued in June 2012, the Veteran submitted additional evidence. The Veteran's representative waived review of the additional evidence by the RO on multiple occasions, most recently in October 2013. See 38 C.F.R. § 20.1304(c) (2013). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The appeal is remanded to the RO. REMAND The Veteran was most recently examined in connection with the Tourette syndrome claim in May 2009 and the posttraumatic stress disorder (PTSD) claim in June 2009. He contends that the ratings initially assigned for the two service-connected disabilities should be higher. Additionally, the Veteran has submitted treatment records, evaluations and records from the Social Security Administration indicating that the disabilities may have worsened. VA's duty to assist includes providing a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given that the most recent examinations were conducted over four years ago and there is at least an indication that the disabilities may have increased in severity, the Board finds it necessary to remand the claims for a contemporaneous examination to ensure that VA meets its duty to assist. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The examinations must include an assessment of the disabilities on the Veteran's employability. The Veteran has submitted medical records and evaluations from multiple sources of private treatment providers. He may be receiving regular treatment at a private facility. On remand, the Veteran must be asked to identify any additional evidence that may be pertinent to his claims and, any such evidence must be requested by the RO under VA's duty to assist. The Veteran may also be receiving regular treatment at VA facilities, including at the VA Medical Center (VAMC) in Orlando, Florida. VA treatment records must be requested as well. Accordingly, this case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. A release from the Veteran must be obtained as necessary. Regardless of the Veteran's response, the RO must obtain the Veteran's more recent VA treatment records (since October 2011), including from the Orlando VAMC. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain these records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the RO must afford the Veteran a VA examination to determine the current severity of his service-connected PTSD. The claims file and all records from any electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that the claims file and any electronic records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The examiner must perform any test or studies deemed necessary for accurate assessment. The examiner must comment upon the presence or absence, and the frequency and severity of the symptoms associated with the Veteran's PTSD, such as, but not limited to: mood; anxiety; suspiciousness; panic attacks; sleep impairment; affect; circumstantial, circumlocutory, or stereotyped speech; near-continuous panic and/or depression affecting the ability to function independently, appropriately, or effectively; difficulty in understanding complex commands; impairment of short- and long-term memory; judgment; abstract thinking; disturbances of motivation and mood; ability to establish and maintain effective work and social relationships; suicidal or homicidal ideations; obsessional rituals that interfere with routine activities, speech; impaired impulse control; spatial disorientation; ability to perform activities of daily living, including maintaining personal appearance and hygiene; difficulty in adapting to stressful circumstances; delusions and/or hallucinations; grossly inappropriate behavior; and disorientation to time and place. The examiner must also enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The examiner must also elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected PTSD, singularly or in combination with service-connected Tourette syndrome, precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must also afford the Veteran a VA examination to determine the current severity of his service-connected Tourette syndrome. The claims file and all records from any electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that the claims file and any electronic records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The examiner must perform any test or studies deemed necessary for accurate assessment. The examiner must comment upon the presence or absence, and the frequency and severity of the symptoms associated with the Veteran's Tourette syndrome, including whether it equates to a mild, moderate or severe convulsive tic. The examiner must also elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected Tourette syndrome, singularly or in combination with service-connected PTSD, precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 6. Finally, after undertaking any other development deemed appropriate, the RO must readjudicate the issues on appeal. If a benefit sought is not granted, the RO must furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).