Citation Nr: 1759979 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 09-28 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation higher than 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from August 1987 to July 2007. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The April 2008 rating decision granted service connection for adjustment disorder and anxious mood, and assigned a 10 percent disability evaluation effective August 1, 2007. In an August 2009 rating decision, the RO recharacterized the disability as PTSD and increased the evaluation to 30 percent, effective January 12, 2009. This case was previously remanded by the Board for additional development in December 2012. A January 2016 Board decision granted entitlement to an initial evaluation of 30 percent for PTSD, but denied entitlement to a higher evaluation for the entire period on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2016 Order, the Court granted the parties' Joint Motion for Remand (JMR) based on a finding that the Board provided insufficient reasons and bases to support the denial of entitlement to an evaluation higher than 30 percent for PTSD. Specifically, the parties agreed the Board failed to properly address evidence from a January 2013 VA examination showing that the Veteran had panic attacks that occurred weekly or less often. In December 2016, the Board again denied the Veteran's claim and the Veteran appealed to the Court. In a June 2017 Order, the Court granted the parties' JMR again finding the Board failed to adequately address favorable evidence documented in the January 2013 examination report. The matter is again before the Board for action consistent with the parties JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, remand is required to afford the Veteran another VA examination to assess the severity of his service-connected PTSD. VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened. Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran most recently underwent a VA PTSD examination in January 2013, at which time he reported he did not experience significant problems on the job due to PTSD. In August 2017, however, the Veteran wrote that his PTSD significantly affected his ability to make it through the work day. The Veteran also submitted an October 2017 private evaluation that described symptoms worse that those reported at the January 2013 VA examination. As the Veteran's August 2017 statements and October 2017 private evaluation indicate worsening PTSD symptoms, remand is required to obtain a VA examination that addresses the current severity of the Veteran's PTSD. Last, on remand appropriate efforts should be made to identify and obtain any outstanding VA or private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must also address the following: 1) the Veteran's August 2017 statements related to PTSD symptoms interfering with his job; and 2) the October 2017 private psychological evaluation, to include the examiner's assessment that the Veteran exhibited periods of severe social, emotional, and occupational impairment with deficiencies in most areas including work, family relationships, cognition, and mood since at least August 2007. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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. §§ 5109B, 7112 (2012). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).