Citation Nr: 1636042 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 13-00 172A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ralph J. Bratch, Esq. ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1983. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD and assigned a 30 percent rating effective from January 14, 2010, the date the Veteran filed his claim for service connection. In his January 2013 substantive appeal, the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board. The hearing was scheduled for April 6, 2016; however, the Veteran's representative cancelled the hearing request. See 38 C.F.R. § 20.704 (e) (2016). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure a complete record upon which to make an informed decision so that the claim is afforded every possible consideration. The Veteran was last afforded a VA examination addressing the nature and severity of his service-connected PTSD in May 2010, performed for purposes of determining entitlement to service connection. Considering that more than six years have passed since he was last provided a VA psychiatric examination, and given the possibility that his PTSD has increased in severity during that time, the Board finds that a new examination is needed reassessing his service-connected PTSD. See 38 C.F.R. § 3.327(a) (2016) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). See, too, Caffrey v. Brown, 6 Vet. App. 377 (1994) (determining that 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). Additionally, the record reflects that the Veteran received medical treatment through VA. See, e.g., January 2013 Statement of the Case (reflecting evidence including "Treatment records from the Biloxi VA Healthcare System dated July 29, 2010 to December 7, 2012); March 2016 Appellate Brief (noting September 2010 VA treatment records reflecting a GAF of 50 and maintain that "the GAF remained in the 50's for years"; reporting that the Veteran Participated in VA PTSD group therapy as reflected in an April 13, 2011 VA Mental Health Note; and referencing "more recent records" noting additional PTSD symptomatology). However, there do not appear to be any records of VA treatment associated with the claims file. See 38 C.F.R. §§ 3.159 (c)(2) (2016); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Furthermore, no relevant records of private medical treatment have been submitted or obtained since 2010. See 38 C.F.R. § 3.159 (c)(3) (2016). Accordingly, as a review of the record suggests that the Veteran is currently under the care of both VA and private treatment providers, on remand, all VA treatment records and any recent relevant private treatment records that the Veteran identifies should be obtained and associated with the claims file. Finally, the Board notes that the Veteran stated that he has been in receipt of Social Security Administration (SSA) disability benefits since April 2010. See September 2010 VA Spine Examination Report (noting that the Veteran "went on 100% SSD in April 2010"). As the record reflects SSA records that may be outstanding and may be pertinent to the Veteran's claims, on remand, the RO must attempt to obtain those records. See 38 C.F.R. § 3.159 (c)(2) and (3) (2016); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (as long as a reasonable possibility exists that the SSA records are relevant to a Veteran's claim, VA is required to assist a Veteran in obtaining the identified records). Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his PTSD. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Make arrangements to obtain the Veteran's complete records of VA medical treatment and associate them with the electronic claims file. 3. Make arrangements to obtain from the Social Security Administration (SSA) all records pertinent to the Veteran's claim for benefits, as well as medical records relied upon concerning that claim. If the search for such records has negative results, the RO/AMC should place a statement to that effect in the Veteran's claims file. 4. Thereafter, schedule the Veteran for a VA mental health examination to determine the current extent and severity of his service-connected PTSD. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examination should include any necessary diagnostic testing or evaluation, including a detailed mental status examination and diagnostic testing of memory impairment. The examiner must identify the symptoms and functional impairment associated with the Veteran's PTSD, and discuss the degree of occupational and social impairment caused by his symptoms, in accordance with the rating criteria specified in VA's General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; suspiciousness; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; unprovoked irritability with periods of violence; difficulty in adapting to stressful circumstances; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. In short, all clinical manifestations of the Veteran's service-connected PTSD should be reported in detail. Preferably, the appropriate Disability Benefits Questionnaire (DBQ) should be used for this purpose. The examining psychiatrist or psychologist should specifically indicate whether the record reflects any change(s) in the severity of the Veteran's PTSD at any point(s) during the pendency of this appeal (i.e., since January 2010, when the Veteran filed his claim for service connection). If so, the psychiatrist or psychologist is asked to note the approximate date(s) of any such change(s), as well as provide an assessment of the severity of the Veteran's PTSD at each date. The examiner must provide a comprehensive report including complete explanation for all opinions and conclusions reached, taking into account, and citing where appropriate, the evidence in the record, including the Veteran's reports of his history, his current psychiatric symptomatology, and all associated functional and occupational limitations found. In this regard, the examiner is asked to consider and address the symptomatology reported by the Veteran throughout the appellate period, as well as the symptoms observed by his spouse and daughter. See March 2016 Statements of the Veteran, his Spouse, and his Daughter (submitted as attachments to his appellate brief). 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 6. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ P.M. DILORENZO 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) (2016).