Citation Nr: 1418018 Decision Date: 04/22/14 Archive Date: 05/02/14 DOCKET NO. 09-27 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that implemented the Board's July 2007 decision that granted service connection for PTSD, and assigned an initial noncompensable disability rating effective from August 27, 2001. The claims file is now in the jurisdiction of the Albuquerque, New Mexico RO. The Veteran testified before the undersigned Veterans Law Judge in a March 2012 Travel Board hearing; a transcript of the hearing is associated with the claims file. In March 2013, the Board granted an increased 10 percent rating throughout the appeal period for the Veteran's service-connected PTSD. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2013, the Court vacated the March 2013 Board decision, and remanded the matter to the Board for further action consistent with a Joint Motion for Remand (Joint Motion). [To the extent the Board's March 2013 decision granted an increased 10 percent rating throughout the appeal period, such aspect of the decision was not disturbed by the September 2013 Joint Motion. The claim is characterized accordingly.] The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The September 2013 Joint Motion found that the Board failed to adequately satisfy its duty to assist the Veteran as it failed to provide the Veteran a contemporaneous examination. The most recent VA examination was in September 2009. The Joint Motion noted that the evidence indicates the Veteran's PTSD symptoms had worsened since the September 2009 VA examination. Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,196 (1995). Thus, this issue must be remanded. In addition, the September 2013 Joint Motion found that the Board failed to secure pertinent treatment records from the Albuquerque, New Mexico Vet Center from which the Veteran received psychological treatment until 2003. Finally, on remand the RO should secure, physically or electronically, any additional, pertinent VA treatment records. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file, physically or electronically, Albuquerque Vet Center treatment records since August 2001, and any additional VA treatment records not of record. Any additional pertinent records identified during the course of the remand (to include from E.R. Diamond, Ph.D., from January 2010 to February 2013, and since January 2014) should also be obtained, following the receipt of any necessary authorizations from the Veteran. 2. Notify the Veteran that he may submit lay statements from himself as well as from individuals who have first-hand knowledge of his psychiatric symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 3. After the above has been completed to the extent possible, the RO should schedule the Veteran for a VA psychiatric examination to determine the extent, and severity of his PTSD and the impact of this disability on his occupational functioning and daily activities. The claims file should be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported in detail. In offering opinions, the examiner should acknowledge and discuss the Veteran's report of his PTSD symptoms and their impact on his ability to work and the impact on his social relationships. The examination report should identify all pertinent psychiatric findings and estimate the Global Assessment of Functional (GAF) Scale score. 4. Then readjudicate the claim. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the and given the opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter 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 E. KILCOYNE 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).