Citation Nr: 1615143 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 12-23 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The case is currently under the jurisdiction of the RO in Columbia, South Carolina. The Veteran testified before the undersigned at a January 2016 Video Conference hearing. The hearing transcript is of record. The Veteran submitted additional medical evidence at the hearing, which has not yet been considered by the RO. However, the Veteran waived initial RO consideration of that evidence. In his August 2012 VA Form 9, the Veteran indicated that he was only appealing the issue of an increased rating for PTSD. He did not indicate that he wished to continue his appeal for an increased rating for his right ankle arthritis. The issue was not listed in the June 2015 VA Form 646 from the Veteran's representative and the Veteran also indicated during his January 2016 Video Conference hearing that the issue was not on appeal. Accordingly, the Board finds that this issue is not on appeal. The Board has reviewed the claims file as contained in the electronic records maintained in Virtual VA and Veterans Benefits Management System to ensure consideration of the totality of the evidence. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The most recent VA examination in connection with the Veteran's claim for PTSD was held in September 2014. The Veteran reported during his January 2016 Video Conference hearing that his disability has increased in severity since that time. Specifically, he claimed that he has increased irritability and anger, a short temper and little patience; panic and anxiety attacks 2-3 times a week and hypervigilance; increased social impairment (no relationship with his son); obsessive ritualistic behavior, such as wandering around the house and checking the doors at night; that he avoids groups and crowds and has social isolation; and that he has depressive spells and daily suicidal ideation. A January 2016 statement from the Veteran's counselor at the Charleston, South Carolina Vet Center, where the Veteran has been receiving treatment since 2013, indicates that the Veteran's symptoms include severe social isolation, guarding, unprovoked irritability and uncontrollable rage and anger, depression, suicidal ideation, emotional numbing, lack of motivation, paranoia, and short- and long-term memory impairment. He has also endorsed impairment in social and occupational functioning and persistent danger of hurting others. Given the evidence of possibly increased symptomatology, a new VA examination is warranted. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007) (when a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the United States Court of Appeals for Veterans Claims determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The Board notes that the Veteran has alleged that he has been unemployable due to his service-connected PTSD since May 2012. However, the Veteran is currently in receipt of a 100 percent rating for his service-connected prostate cancer, effective April 30, 2012. See July 2014 Application for Increased Compensation Based on Unemployability and May 2012 rating decision. Therefore, although a finding that the Veteran has total social and occupational impairment as a result of his PTSD would show that he is entitled to an increased rating for the disability under the applicable diagnostic code (DC 9411), the issue of entitlement to a total disability rating based on individual unemployability is moot. In addition to the VA examination, on remand, any pertinent private or VA treatment records generated since the September 2014 VA examination, not already of record, should be obtained and considered in connection with the examination. In this regard, the Veteran reported during his January 2016 Video Conference hearing that he had been attending group therapy at the Vet Center in Charleston, South Carolina every week for the past two and a half years (since 2013). The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2015). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all relevant VA medical records dated since September 2014. The Board notes that the Veteran has reported group therapy at the Vet Center in Charleston, South Carolina since 2013 2. Request that the Veteran identify any private medical records that are not of record and provide a release. Request those records and associate them with the claims file. . 3. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum. The examiner should discuss the effects of the Veteran's PTSD on his occupational and social functioning. A complete rationale should be given for all opinions and conclusions expressed. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. 5. If the benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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) (2015).