Citation Nr: 1400667 Decision Date: 01/08/14 Archive Date: 01/23/14 DOCKET NO. 10-34 615 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE 1. Entitlement to an initial rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD) with major depressive and dysthymic disorders, prior to November 1, 2011. 2. Entitlement to a rating in excess of 50 percent for the service-connected PTSD with major depressive and dysthymic disorders beginning on November 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to January 1975. This case comes before the Board of Veterans' Appeal (Board) on appeal of a January 2010 rating decision of the RO. Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for PTSD with major depressive and dysthymic disorders, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In this appeal, the RO has awarded staged ratings from November 1, 2011 for the disability under consideration, consistent with Fenderson. However, as higher ratings for this disability are available at each stage noted on the title page, and the Veteran is presumed to seek the maximum available benefit for a disability, claims for higher ratings at each stage remain viable on appeal. Id.; AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2012, the Veteran and her spouse testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. A review of the Veteran's Virtual VA and VBMS electronic claims file reveals no additional records. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND After a review of the Veteran's claims file, the Board finds that additional RO action on the claim for higher initial rating for the service-connected PTSD with major depressive and dysthymic disorders is warranted. The record reflects that the Veteran was last afforded a VA examination to evaluate her service-connected psychiatric disorders in November 2011. During the Veteran's August 2012 hearing, she expressly indicated that this disability had worsened since the last examination. Under these circumstances, the Board finds that a more contemporaneous examination, with medical findings responsive to the applicable criteria for rating the disability under consideration, is needed. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). In addition, the record reflects that the Veteran receives treatment at the Dallas VA Medical Center (VAMC). While records through October 2009 are associated with the claims file, more recent treatment records should be obtained. The Board emphasizes that 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). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to obtain from the VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran, since October 2009. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Then, the RO should have the Veteran scheduled for a VA psychiatric examination to determine the current severity, as well as the level of severity during the entire appeal period from April 2009, of the service-connected PTSD with major depressive and dysthymic disorders. The claims folder must be made available for the examiner to review. All indicated studies should be performed, and all findings should be reported in detail. The examiner should set forth the complete rationale for any conclusions reached. Specifically, the examiner should assign a GAF score and the examination report should identify the manifestations of the service-connected disability throughout the entire appeal period from April 2009. Any opinion expressed by the examiner should be accompanied by a rationale. 3. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should issue a fully responsive Supplemental Statement of the Case to the Veteran and her representative and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).