Citation Nr: 1415590 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 12-13 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) (excluding period of temporary total evaluation). 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Missouri Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional office (RO) in St. Louis, Missouri, which continued the assigned 30 percent rating for his service-connected PTSD, and denied his claim of entitlement to a TDIU. The Board notes that the assigned rating for the Veteran's PTSD was subsequently increased to 50 percent, effective July 17, 2009 (date of claim). Rating Decision dated April 24, 2012. He was also assigned a temporary total evaluation for his PTSD pursuant to 38 C.F.R. § 4.29, effective from October 4, 2010, with the 50 percent rating being restored effective December 1, 2010. Nevertheless, this claim remains in appellate status pursuant to the holding of AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the Board has construed the issue on the title page above to reflect this development. For the reasons detailed below, 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 VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board finds that further development is required in order to comply with the duty to assist. The Board observes that the Veteran testified at his August 2013 hearing that he had received recent treatment for his service-connected PTSD at VA and the Vet Center, to include one week prior to that hearing. However, no such records appear to be on file. Further, when this case was last adjudicated below via the May 2012 Statement of the Case (SOC) it showed treatment records dated through April 2012. Consequently, the Board concludes that it must remand this case in order to obtain any such records. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board also observes that the Veteran was accorded VA medical examinations which evaluated his service-connected PTSD in December 2009 and April 2012. However, at his August 2013 hearing the Veteran criticized the adequacy of the April 2012 VA examination. His testimony also indicated his symptoms may have increased in severity since the most recent examination. Given the Veteran's assertions and potentially the receipt of additional medical reports, a remand to afford the Veteran a new examination of his PTSD, to include an opinion as to its effect on his employability, is warranted. Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for his service-connected PTSD since April 2012. After securing any necessary release, obtain those records not on file. Even if the Veteran does not respond, follow-up on his account of recent treatment through VA and the Vet Center as discussed at his August 2013 hearing. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his PTSD symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination by an examiner who has not previously examined him to evaluate the current nature and severity of his service-connected PTSD. The claims folder should be made available to the examiner for review before the examination. In addition to the specific symptomatology of the Veteran's PTSD, the examiner should also express an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained after the issuance of the May 2012 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ C. CRAWFORD 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).