Citation Nr: 1509397 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 12-16 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with dysthymic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD with dysthymic disorder with alcohol and cocaine dependence in full remission, and awarded a 50 percent rating, effective April 14, 2011. The Veteran disagreed with the 50 percent rating and the current appeal ensued. In August 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record in the Veteran's Virtual VA file. There is also a Veterans Benefits Management System virtual file in this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Veteran asserts that his PTSD with dysthymic disorder is more severe than currently rated. The Veteran complains that he has depression, flashbacks two to three times a week, and is unable to adequately take care of his personal hygiene. He testified at his August 2013 videoconference hearing that he was hospitalized for this disability privately and at VA in 2013. He stated in his April 2012 notice of disagreement (NOD) and during his August 2013 videoconference hearing, that his psychiatric disability had worsened. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Since the Veteran claims worsening of his PTSD with dysthymic disorder, the VA's duty to assist requires a "thorough and contemporaneous" medical examination. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Further, it was noted in a July 2013 psychology note that the Veteran was in receipt of Social Security disability benefits. It was not clear, however, if the Veteran's service-connected psychiatric disability is a reason that he is in receipt of such benefits. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit held that VA's duty to obtain SSA records was not absolute, and that the duty only extends when the records are believed to be relevant. Here, because the Veteran is in receipt of Social Security disability benefits and it is not clear for what disabilities, the potential relevancy of the SSA decision and the records it considered cannot be ignored. These records are necessary for review before a decision may be made regarding his claim. Finally, the Veteran testified that he was hospitalized at a private facility, Laurel Ridge, and transferred to VA Villa Serena, in 2013, for his service-connected psychiatric disability. Those records are not associated with the claims folder. These records should be obtained prior to final disposition of the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, (to include from VA Villa Serena and private records from Laurel Ridge, both hospitalizations in 2013) that may have come into existence since the time the claims file was last updated by the AOJ. 2. Obtain a copy of the decision and records considered by the Social Security Administration in making its decision for Social Security disability benefits. Any negative response should be included with the claims file. 3. Following completion of the above, schedule an appropriate VA mental disorders examination to determine the current severity of the Veteran's service-connected PTSD with dysthymic disorder. The claims folder (to include the electronic claims files) must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran's documented medical history and lay statements. All indicated studies should be performed, and the examiner should review the results of any studies prior to completing the report. The examiner must elicit from the Veteran and the record for clinical purposes a full work and educational history. 4. After completion of the above actions, the claim for an initial increased rating for PTSD with dysthymic disorder should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).