Citation Nr: 1808080 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-15 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: American Legion ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1999 to August 2000 and from September 2001 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Veteran is seeking an initial disability rating in excess of 50 percent for his service-connected PTSD. Specifically, the Veteran contends that his PTSD is more severe than reflected by his currently assigned disability rating. In an October 2011 Request for Information, the Veteran indicated that he had mental health records located at the El Centro Health Care Clinic in Embudo, New Mexico. The Veteran further noted that his initial mental health care treatment was established at the clinic in Embudo, where he worked with a social worker and was prescribed medications. See February 2012 VA Examination. He had attended out-patient classes for his PTSD and had met five or six times with his social worker. See November 2011 VA Treatment Record. The Board notes that when reference is made to pertinent treatment records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990). As such, remand is warranted so that the treatment records may be obtained in compliance with VA's duty to assist. Next, the Board finds that a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his PTSD. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the 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 Veteran was last afforded a VA examination in February 2012, approximately five years ago. The Board notes that the Veteran has contended that the February 2012 examination does not fully reflect the severity of his PTSD, as the VA examiner had the incorrect claims file before her during the examination and did not afford the Veteran an opportunity to expound on his symptomatology. See April 2014 VA Form 9. The Board further notes that a February 2013 private psychological assessment diagnosed the Veteran with major depression disorder with suicidal ideation in addition to PTSD. In his April 2014 substantive appeal, the Veteran reported suffering from full-blown panic attacks less than once weekly, but experienced mini-panic attacks several times a day. He also reported occasionally engaging in suicidal ideation, with no specific intent. As the record indicates a possible worsening of the Veteran's PTSD and given that approximately five years have passed since his last VA examination, a new VA examination is warranted to verify the current severity of the Veteran's PTSD. Finally, in the February 2013 private psychological assessment record, the Veteran indicated he was seeing a psychiatrist at the Albuquerque VA medical center (VAMC) and Dr. M. at the Santa Fe VAMC, who had been prescribing him anti-depressants for the last year. The Board notes that the most recent VA treatment records in the Veteran's file are from 2012. Updated VA treatment records have not been associated with the claims file and the Board is unable to review them. Therefore, any updated pertinent VA records should be obtained and associated with the claims file on remand. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers that have treated him for his PTSD. The RO is specifically asked to obtain treatment records from the El Centro Health Care Clinic in Embudo, New Mexico. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record to the extent possible, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his service-connected PTSD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should also discuss the impact, if any, the Veteran's PTSD has on his activities of daily living, including his ability to obtain and maintain employment. The examiner should specifically note the Veteran's February 2013 diagnosis of major depression disorder with suicidal ideation and determine whether it is an unrelated diagnosis or a manifestation of the Veteran's PTSD. If major depression disorder is an unrelated diagnosis, the examiner is requested to distinguish the symptoms due to major depression disorder from the symptoms due to PTSD. If the symptoms cannot be differentiated, the examiner should so state in the report and explain why. The supporting rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. The Veteran and his representative have 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 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 (2014). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).