Citation Nr: 1514036 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 08-29 771A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder (PTSD) and mood disorder due to service-connected disabilities, currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1972. He also had additional service in the Marine Corps Reserves and the Army Reserves. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In July 2011, the Veteran and his spouse testified at a videoconference hearing held before the undersigned; a transcript of the hearing is in the record. In September 2011 the Board remanded this matter for additional development. The Veteran also initiated an appeal of the RO's September 2007 denial of service connection for bilateral hearing loss and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). However, a December 2012 rating decision granted service connection for bilateral hearing loss and TDIU. Hence, these matters are considered to be fully resolved and no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The December 2012 rating decision also granted an increased rating, from 30 to 70 percent, for the Veteran's PTSD. However, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased initial rating for PTSD remains in appellate status. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. The September 2011 Board remand requested that the Veteran be afforded a VA PTSD examination to assess the "the nature and extent of any disability due to PTSD and mood disorder." Although the Veteran underwent VA PTSD examination in October 2012, the examination report reflects that the examiner provided an opinion as to the extent of the Veteran occupational and social impairment due to the Veteran's PTSD alone (rather than combined impairment resulting from his service-connected PTSD and mood disorder). According, the opinion is inadequate for rating purposes and remand to obtain another examination and opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007) (when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Notabely, the July 2014 Appellant's Post-Remand Brief claims that the Veteran's PTSD warrants an increased 100 percent rating because he experiences symptoms, such as hallucinations and intermittent inability to perform activities of daily living, which were not adequately evaluated during the October 2012 VA PTSD examination. This contention should also be addressed by the examiner. Records of ongoing VA and private mental health treatment may contain pertinent information (VA records are constructively of record) and must be secured. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all providers of evaluations or treatment he has received for psychiatric complaints since the September 2011 Board remand and to provide the authorizations necessary for VA to obtain any private records of such evaluations and treatment. Updated VA treatment records should be obtained. 2. Thereafter, the Veteran should be afforded a VA PTSD examination. The claims folder is to be made available to the examiner to review. In accordance with the latest AMIE worksheets for rating psychiatric disabilities, the examiner is to provide a detailed review of the appellant's pertinent medical history and current complaints and an opinion as to the nature and extent of social and occupational impairment due to PTSD and mood disorder. The findings should include notations of the presence or absence of each criterion in the diagnostic criteria for a 100 percent rating for psychiatric disability (see 38 C.F.R. § 4.130) and any other symptoms of similar nature and gravity. The examiner should specifically address the Veteran's complaints of hallucinations and intermittent inability to perform activities of daily living. The examiner must include rationale for all opinions offered, citing to supporting findings/factual data, as deemed appropriate. 3. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN 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).