Citation Nr: 1804372 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-48 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to increases in the (30 percent prior to December 20, 2013 and 70 percent from that date) staged ratings assigned for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1970 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the record. In August 2013 and March 2015, the Board remanded the matter for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's last previous [March 2015] remand instructed that the AOJ should ask the Veteran to provide authorization for VA to inquire of the U.S. Postal Service the circumstances of his retirement from that employer (i.e. whether his psychiatric disability was a factor in early retirement, as he has alleged), and that the AOJ should then ascertain (by contact with the U.S. Postal Service) whether the Veteran indeed took an early retirement from the Postal Service due to behavioral problems related to his PTSD. A July 2017 AOJ letter to the Office of Personnel Management noted that the Veteran "states he or she received treatment provided by you, or your facility" and requested "all treatment records, hospital summaries, findings and/or diagnoses" from 1982 through 2006. The AOJ letter also noted the Veteran's contention that he had to retire early due to behavior problems related to his PTSD and requested "the Veteran's personnel records pertaining to his reasons for retirement". A September 2017 Office of Personnel Management response to an inquiry regarding the circumstances of the Veteran's retirement indicated that he "did not retire on a disability annuity. Therefore, OPM does not have any medical evidence or treatment records to provide your office." However, the OPM letter is nonresponsive to the AOJ's request for personnel records. The remand instruction is not fulfilled. The Board's March 2015 remand also instructed that the record be returned to the December 2013 VA examiner for an addendum opinion, to include regarding the levels of impairment associated with the Veteran's PTSD throughout the appeal period (since September 2009), specifically addressing whether there are any distinct periods when the disability is shown to have had manifestations productive of (1) occupational and social impairment with reduced reliability and productivity, (2) occupational and social impairment with deficiencies in most areas, or (3) total occupational and social impairment. The examiner was to opine, specifically, whether the assessments of functional impairment noted on evaluations are consistent with the symptom findings on examinations and noted in the treatment records. In a November 2017 addendum opinion the reviewing examiner opined that the levels of impairment the Veteran has experienced during the period of 2009 to 2013 varied, but never exceeded moderate. The provider did not address the portion of the appeal period from December 2013 to the present. Accordingly, and because the Veteran has now not been afforded a VA examination since December 2013 (more than 4 years) and the disability is allegedly worse than moderate, the matter must be remanded. Records of VA evaluations or treatment the Veteran received for his psychiatric disability are constructively of record, may contain pertinent information, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to provide authorization for VA to ascertain from the U.S. Postal Service the circumstances of his retirement (i.e. whether his psychiatric disability was a factor in early retirement, as he has alleged). The AOJ should ascertain (by contact with the U.S. Postal Service and request for any pertinent personnel records) whether the Veteran indeed took an early retirement due to behavioral problems related to his PTSD. If no pertinent personnel records exist, the U.S. Postal Service should be asked to so indicate. 2. The AOJ should secure for the record any and all clinical records of VA mental health evaluations and/or treatment the Veteran has received. 3. The AOJ should then arrange for the Veteran to be examined by a psychiatrist or psychologist to ascertain the current severity of his psychiatric disability. The Veteran's entire record should be reviewed by the examiner in connection with the examination (and the examiner should have available for review 38 C.F.R. §§ 4.126, 4.130, i.e., the portions of VA's Rating Schedule pertaining to the rating of psychiatric disability). The examiner should describe all symptoms of the psychiatric disability (and their impact on occupational and social functions) in detail. The examiner should specifically note the presence (and frequency/severity) or absence of each symptom listed in the criteria for a 100 percent schedular rating, as well as any symptoms of similar gravity found not listed in the rating criteria. The examiner should opine regarding the impact the Veteran's PTSD has on his daily activity/social functioning. Based on review of the Veteran's record and examination/interview of the Veteran, the examiner should also respond to the following: Provide an opinion regarding the levels of impairment associated with the Veteran's PTSD throughout the appeal period, since September 2009 (to the present), specifically addressing whether there are any distinct periods when the disability is shown to have had manifestations productive of (1) occupational and social impairment with reduced reliability and productivity, (2) occupational and social impairment with deficiencies in most areas, or (3) total occupational and social impairment. Specifically, are the assessments of functional impairment noted on evaluations (in particular from 2013 to the present) consistent with the symptom findings on examinations and noted in treatment records? Please identify the factual data that support the conclusions. 4. The AOJ must ensure that all development sought is completed (there is an appropriate response to each request) and then readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his agent opportunity to respond, and return the case 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. §§ 5109B, 7112 (West 2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).