Citation Nr: 1414663 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 11-19 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent disabling for post-traumatic stress disorder (PTSD). 2. Entitlement to a disability evaluation in excess of 30 percent disabling for PTSD for the period beginning March 26, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active service from January 1952 to October 1953. His decorations for his active service include a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for PTSD with an initial evaluation of 10 percent, and an April 2011 rating decision by the VA RO in New York, which granted an increased evaluation of 30 percent for the period beginning March 26, 2010. This issue was previously before the Board in November 2012. In November 2012, the Board denied the issues currently on appeal. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2013, while his case was pending at the Court, the VA's Office of General Counsel and the Veteran's representative filed a Joint Motion requesting that the Court vacate the Board's November 2012 decision. That same month, the Court issued an Order vacating the November 2012 Board decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 contends that his symptoms warrant an initial evaluation in excess of 10 percent disabling for PTSD and an evaluation in excess of 30 percent disabling for PTSD for the period beginning March 26, 2010. In November 2012, the Board denied the issues currently on appeal. In its decision, the Board noted that the Veteran was afforded a VA PTSD examination in December 2009. The VA examiner diagnosed the Veteran with PTSD and depressive disorder. The VA examiner noted that the depressive disorder symptoms were the result of events occurring after service. Therefore, the examiner separated the symptoms of the service-connected and non-service connected disability when assigning a GAF score of 65 based on the Veteran's PTSD. The Board also noted that during the same time period the Veteran's social worker did not separate the symptoms of the service-connected and non-service connected disability when assigning GAF scores of 40. Thus, the Board found the GAF score assigned by the VA examiner to be more reliable and it denied an initial evaluation in excess of 10 percent disabling. For the period beginning March 26, 2010, the Board noted that the Veteran's GAF scores ranged from 50-55, which was consistent with the 30 percent evaluation assigned. The Board also noted that the Veteran did not exhibit symptoms typically associated with a 50 percent or higher evaluation. Thus, the Board found that an evaluation in excess of 30 percent disabling for the period beginning March 26, 2010, was not warranted. The Board also determined that an extraschedular rating was not warranted under Thun v. Peake, 22 Vet. App. 111 (2008). As noted above, the Veteran appealed to the Court, which issued an August 2013 Order vacating the Board's November 2012 decision. A review of the Joint Motion shows that it was agreed that the Board erred "when it rejected evidence of worsening symptoms based upon its own unsubstantiated medical conclusion, violating Colvin v. Derwinski, 1 Vet. App. 171 (1991)," and that the Board "violated its duty to assist by failing to ensure that the entirety of the March 11, 2009 VA progress notes were obtained. 38 U.S.C. § 5103A(c) [(West 2002)]." The Joint Motion noted that "a remand is warranted to obtain a new medical opinion regarding the level of disability of Appellant" for the period on appeal "which takes into full consideration the treatment records of the VA LSW [Licensed Social Worker]" from January 2010, March 2010, May 2010 and February 2011. The Joint Motion also noted that upon remand, "the Board should ensure that all of Appellant's VA treatment records are included in the claims file, particularly the complete March 11, 2009 initial psychiatric evaluation." Given the foregoing, on remand, the RO/AMC should afford the Veteran a new VA PTSD examination, to include an opinion on the Veteran's level of disability for the period from August 17, 2009, to March 25, 2010. The RO/AMC should also obtain any outstanding treatment records from the VA medical center, or otherwise identified by the Veteran. These records should include the complete March 11, 2009, treatment record. If the records are unavailable, the Veteran should be notified of the VA's inability to obtain the records before the case is returned to the Board for decision. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Copies of all outstanding treatment records, to include VA treatment records, and any other records identified by the Veteran should be obtained and added to the claims file. Specifically, the entirety of the March 11, 2009, treatment record should be associated with the claims file. If the records are unavailable, the Veteran should be notified of the VA's inability to obtain the records. 2. The Veteran should undergo an appropriate VA examination, if possible a PTSD examination given by a specialist, to determine the current severity of his service-connected PTSD. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examiner should obtain a full history of the Veteran's relevant symptomatology and assess the current severity of his psychiatric disorder in accordance with 38 C.F.R. § 4.125 (2013) and the DSM-IV. All tests, studies, or evaluations deemed necessary should be performed, and the results should be reported in detail. The examiner should also provide a medical opinion regarding the level of disability of the Veteran for the period from August 17, 2009, to March 25, 2010, that takes into full consideration the January 2010, March 2010, May 2010, and February 2011 treatment records of the VA Licensed Social Worker. 3. Then the RO should readjudicate the Veteran's claims of entitlement to an initial evaluation in excess of 10 percent for PTSD, and entitlement to an evaluation in excess of 30 percent for PTSD for the period beginning March 26, 2010. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ JONATHAN B. KRAMER 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).