Citation Nr: 1550715 Decision Date: 12/03/15 Archive Date: 12/10/15 DOCKET NO. 14-16 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to increases in the "staged" ratings (of 10 percent prior to March 25, 2014, and 30 percent from that date) assigned for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1968 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO); the record is now in the jurisdiction of the Huntington, West Virginia RO. In September 2012, a hearing was held before a Decision Review Officer (DRO) at the RO, and a transcript of the hearing is in the record. An April 2014 rating decision granted a 30 percent rating for PTSD, effective March 25, 2014; both "stages" of the rating remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In July 2015, a Travel Board hearing was held before the undersigned, and a transcript of the hearing is in the record. The Veteran had also initiated appeals of denials of a rating in excess of 10 percent for a right hip disability and service connection for a right foot disability. Regarding the right hip issue, the record reflects that he withdrew his appeal in the matter on the record at a September 2012 hearing before a DRO at the RO, prior to the issuance of a statement of the case (SOC). Regarding the right foot issue, the record reflects that after the issuance of a SOC on April 30, 2014, the Veteran did not file a timely substantive appeal in the matter. [A VA Form 9 (listing only the issue of the ratings for PTSD) was received by VA on April 30, 2014, the same date that the aforementioned SOC was mailed to the Veteran. The Veteran would not have received the SOC by that date, and the VA Form 9 received by VA on April 30, 2014 cannot be considered a response to the SOC issued on that date.] A May 2014 telephone contact report notes the Veteran's attorney's contention that the aforementioned VA Form 9 was "meant to cover both appeals,"; this statement lacks specificity (and form) to be interpreted as a formal substantive appeal on the issue regarding the right foot. Consequently, these matters (i.e., seeking a rating in excess of 10 percent for a right hip disability and service connection for a right foot disability) are not before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA. Specifically, the following pertinent records have been identified but are not in the record: (1) Treatment reports from a private provider who allegedly prescribed Cymbalta to the Veteran in 2009 and 2010 (cited in April 2014 VA treatment reports resting in Virtual VA); (2) The report of an August 2011 psychological evaluation conducted by John Atkinson, Jr., MA, which allegedly provided a Global Assessment of Functioning (GAF) score of 47 for the Veteran (cited in a September 2012 private psychiatric examination report); (3) VA psychiatric treatment reports dating from April 2014 (the most recent report now in the record) until "late 2014" (cited in the Veteran's testimony at the July 2015 Board hearing); and (4) A statement from the Veteran's mother (cited at the July 2015 Board hearing, when the statement was allegedly submitted (but not since associated with the record). In addition, at his July 2015 Board hearing, the Veteran testified that he felt that his PTSD had been worsening since 2014. As he has not been afforded a VA examination for his service-connected PTSD disability since March 2014, a contemporaneous examination to assess such disability is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) evaluations or treatment he has received for PTSD, and to provide all releases necessary for VA to secure any private records of such evaluations or treatment. The AOJ should secure for the record complete records of all such evaluations and treatment from all providers identified. The AOJ should also specifically secure for the record complete copies of the clinical records of all updated (to the present) VA evaluations and treatment the Veteran has received for PTSD since April 2014. Upon obtaining any appropriate release(s) from the Veteran, the AOJ must secure the following for the record: (a) Treatment reports from a private provider who allegedly prescribed Cymbalta to the Veteran in 2009 and 2010 (cited in April 2014 VA treatment reports in Virtual VA); (b) The report of an August 2011 psychological evaluation by John Atkinson, Jr., MA, who allegedly provided the Veteran a Global Assessment of Functioning (GAF) score of 47 for (as cited in a September 2012 private psychiatric examination report); (c) VA psychiatric treatment reports from April 2014 (the most recent report currently in the record) until "late 2014" (identified in the Veteran's July 2015 Board hearing testimony); and (d) A statement from the Veteran's mother (cited at the July 2015 Board hearing (when such statement was submitted but not thereafter associated with the record). If any such records are unavailable, the reason must be explained for the record, and the Veteran should be so notified, and afforded opportunity to submit duplicate copies (with AOJ assistance in securing such copies, as appropriate). 2. The AOJ should arrange for a psychiatric examination of the Veteran to ascertain the severity of his service-connected PTSD. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. The examiner should be provided a copy of the criteria for rating mental disorders (including 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders). Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please describe all symptoms and manifestations of the Veteran's PTSD (specifically noting any symptoms found that are not listed in the rating criteria), and describe their degree of severity and impact on function. (b) Please specifically comment on the overall impact the PTSD disability has on occupational and daily activity functioning. The examiner must explain the rationale for all opinions, citing to supporting factual data, medical literature, and prior medical opinions, as appropriate. 3. The AOJ should then review the record, ensure that all development sought is completed (and arrange for any further development suggested by any additional evidence received), and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC (SSOC) and afford the Veteran and his attorney opportunity to respond. The case should then be returned to the Board. The Veteran 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). _________________________________________________ GEORGE R. SENYK 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) (2015).