Citation Nr: 1602714 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 08-33 879A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who had active service from January 1965 to August 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2004, April 2006, February 2007, and October 2008 rating decisions of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and assigned the initial (and a later increased 50 percent) ratings. In October 2012, a videoconference hearing was held before the undersigned; a transcript is in the claims file. In February 2013 and October 2014 this matter was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND In its prior remands, the Board noted that the underlying clinical treatment records from Dr. M. Y., the Veteran's private treating psychologist, were critical to reconciling the significant discrepancy between the letters provided by Dr. M. Y. (providing an assessment of the Veteran's disability level) and the findings on VA treatment and examination. The record includes a February 2015 Report of General Information noting that the Veteran was contacted and that he stated that he provided a medical records release form to the "Monroe CBOC" in October 2014. In March 2015, the Appeals Management Center determined that the matter was not ready for readjudication because the matter of the October 2014 release had not been pursued. There is no evidence in the record that any other action was taken to locate the October 2014 medical records release form (or request that the Veteran complete a new one) prior to the readjudication of the claim in March 2015. Given the critical nature of the outstanding private treatment records, and the Veteran's apparent willingness to assist in obtaining those records, remand is required to locate the October 2014 medical records release form/provide the Veteran another opportunity to complete such form. In addition, the most recent (May 2015) supplemental statement of the case (SSOC) indicated that VA treatment records through April 2015 were reviewed. However, the most recent VA treatment records in the record are from April 2013. Records of treatment for service-connected disabilities are clearly pertinent (and may be critical) evidence in a claim for increase, and must be secured for (and associated with) the record; notably, VA records are constructively of record. Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for an exhaustive search for the medical records release form the Veteran allegedly submitted at the "Monroe CBOC" in October 2014. If it is not located, or does not encompass records from Dr. M. Y. (or is expired/no longer effective), the AOJ should ask the Veteran to (re)submit authorization and release forms for VA to obtain private treatment records from Dr. M. Y. He must be afforded the full one year period of time provided by regulation to respond (or to expressly indicate that he will not cooperate with the request). If he responds but the response is incomplete, the AOJ must advise him that his response was incomplete, and that compliance with all requests is necessary, and afford him opportunity to do so. If he provides the identifying information and release sought, the AOJ should secure for the record copies of the complete clinical records of the identified treatment not already associated with the record. If the records are available, but not received pursuant to the AOJ's request, the Veteran must be so advised and reminded that ultimately it is his responsibility to ensure that private records sought are received. If a submission by the provider or the Veteran is incomplete, the Veteran must be so advised, and afforded the opportunity to complete the submission. If the private provider does not respond to the AOJ's request for records, and the Veteran does not submit such records upon being so advised, the claim must be further processed as abandoned under 38 C.F.R. § 3.158(a). 2. The AOJ should obtain copies of complete records (those not already associated with the record) of all VA evaluations and/or treatment the Veteran has received for PTSD from April 2013 to the present. 3. After the development sought above is completed (and only if additional clinical records are obtained), the AOJ should arrange for all further development indicated, to specifically include returning the Veteran's record to the March 2015 VA examiner for further review regarding the severity of the Veteran's PTSD. [If further examination is necessary to address the questions, such should be arranged; if that examiner is unavailable, the AOJ should arrange for another psychiatrist or psychologist to review the record (and conduct an examination, if needed.)] If another examination is conducted, the examiner should be furnished a copy of the criteria for rating PTSD and should note the presence or absence of each listed symptom in the criteria for ratings above 50 percent (and if a symptom is found present, its severity and frequency), as well as any additional symptoms found that are not listed in the rating criteria. The examiner should specifically opine regarding the expected impact of the symptoms found on occupational and social functioning and identify whether, when, and to what extent the symptoms and functional impairment have worsened during the period on appeal (if such is the case). The examiner should also specifically comment on any discrepancies between the psychiatric disability picture presented by VA treatment records/examination reports and that portrayed by private treatment records/opinions (if additional private treatment records are received). The examiner must include rationale for all opinions. 4. The AOJ should the review the record, ensure that all of the development sought is completed, arrange for any further development suggested by additional evidence received, and then review the record and readjudicate (under 38 C.F.R. § 3.158(a) if applicable) the claim on appeal. If it remains denied (or is dismissed as abandoned), the AOJ should issue an appropriate SSOC and afford the Veteran and his representative opportunity to respond. [If the Veteran does not provide an additional release after notification that the October 2014 release cannot be found (if such is the case), and the AOJ determines that 38 C.F.R. § 3.158(a) does not apply, the SSOC must include explanation for such determination.] 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). _________________________________________________ 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).