Citation Nr: 1342821 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-27 873A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to November 8, 2011. 2. Entitlement to an initial evaluation in excess of 50 percent for PTSD from November 8, 2011. 3. Entitlement to service connection for seizures. 4. Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) from May 2008, May 2009 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the January 2013 rating decision, the RO increased the initial evaluation of the Veteran's service-connected disability to 50 percent disabling effective November 8, 2011. Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified before the Board via a videoconference hearing held on August 29, 2013. A transcript of the testimony offered at this hearing has been associated with the record. 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 The Veteran seeks higher evaluations for his service-connected PTSD. He was last afforded a VA examination in November 2011 to address the severity of this disability. At his August 2013 hearing the Veteran testified that since the VA examination he felt that PTSD had gotten worse, noting that VA had increased his Trazodone dosage. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the Veteran's testimony indicates possible worsening of his PTSD, he should be afforded a new VA examination to address the severity of this condition. The Veteran asserts that he has a seizure disorder that first manifested in service and has persisted to present day. He has testified, as well as submitted several statements, that during his service in Vietnam he first had seizure in approximately June or July of 1970. He has related that he received medical treatment for this disability in service. However, the service treatment records currently associated with the claims file reveal no documentation of any such treatment or complaints regarding seizures. No personnel records have been associated with the claims file. It does not appear that a request for the Veteran's service personnel and treatment records has been made since a March 1972 claim for service connection of hearing loss, which is not the subject of this appeal. The Veteran and his attorney request that VA attempt to obtain further service records. It appears that there are relevant outstanding service and personnel records. When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2). Accordingly, VA must attempt to obtain any possibly outstanding service treatment and personnel records. The Veteran receives treatment for his PTSD through VA. A review of the claims file discloses VA records dated through May 13, 2009. The Veteran has indicated that VA increased his psychiatric medication since the November 2011 examination; thus, it appears that there are outstanding relevant VA records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the Board finds that VA must attempt to obtain any VA records not currently associated with the claims file. The Veteran is basing his claim for a TDIU on interference with employability caused by his service-connected PTSD, as well as a yet to be service-connected seizure disability. As such, the Board finds that the claim for a TDIU is inextricably intertwined therewith and must be deferred pending adjudication of these claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any service records not currently associated with the claims file, particularly any personnel and treatment records associate them with the claims file. Perform any and all follow-up as necessary, and document negative results. A negative response is required, unless the AMC/RO determines that any efforts to obtain these records are futile. 2. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records dated after approximately May 13, 2009. Perform any and all follow-up as necessary, and document negative results. A negative response is required, unless the AMC/RO determines that any efforts to obtain these records are futile. 3. After the development directed in paragraph 2 has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims folder, and any additional evidence obtained, must be made available to the examiner for review. All tests and studies deemed necessary by the examiner should be conducted, in order to obtain, as accurately as possible, a true picture of the nature and extent of any current PTSD. These tests should include validity testing of the Veteran's responses. The tests and studies performed, and their results, should be discussed in the examination report. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the applicable rating criteria. The examiner must discuss the effect, if any, of the Veteran's PTSD on both his social and industrial adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. Based on examination findings and other evidence contained in the claims file, the examiner is also asked to comment on whether the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected PTSD. A complete rationale for any opinion expressed should be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Then, after conducting any additional indicated development, readjudicate the claims currently on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case to the Veteran and his attorney and provide them an appropriate period of time to respond before this case is returned to the Board. 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). _________________________________________________ MICHAEL A. PAPPAS 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).