Citation Nr: 1808637 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-47 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to increased ratings for posttraumatic stress disorder (PTSD), currently assigned 'staged' ratings of 50 percent prior to April 13, 2015, and 70 percent from that date. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from August 1969 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. An interim January 2007 rating decision granted a temporary total evaluation for hospitalization for PTSD from August 16, 2006 to October 31, 2006. An interim October 2009 rating decision granted a temporary total evaluation for hospitalization for PTSD from December 17, 2008 to February 28, 2009. In January 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. This case was previously before the Board in March 2015, when the Board remanded the PTSD rating issue on appeal for additional development of the evidentiary record. During the processing of that remand, a July 2016 RO rating decision granted an increased (from 50 percent to 70 percent) rating for PTSD effective from April 13, 2015. The Veteran maintains his appeal for higher ratings both before and after the April 13, 2015 date of the increased rating. When this case was previously before the Board in March 2015, it additionally included the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. That issue was also remanded by the Board in March 2015, but the July 2016 RO rating decision granted the Veteran's claim of entitlement to a TDIU, resolving the issue of entitlement to a TDIU and removing the matter from appellate status. The July 2016 RO rating decision notified the Veteran that the decision "favorably resolved the issue of IU that you appealed," and the Veteran has not raised an appeal with any aspect of the determination associated with the grant of TDIU. Accordingly, the Board finds that the TDIU issue is no longer on appeal before the Board at this time. In the March 2015 remand, the Board discussed that a March 2014 rating decision denied the Veteran service connection for peripheral neuropathy of the bilateral extremities, erectile dysfunction, and chronic obstructive pulmonary disease (COPD). The Veteran submitted a timely notice of disagreement in April 2014, but the Board found that no statement of the case (SOC) addressing those issues had been issued as of the time of the Board's March 2015 remand. The Board thus remanded the issues of entitlement to service connection for peripheral neuropathy of the bilateral extremities, erectile dysfunction, and COPD, pending the issuance of an SOC to the Veteran and receipt of a timely Substantive Appeal in response thereto. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Since then, the Agency of Original Jurisdiction (AOJ) issued an SOC on these three issues in August 2015, and the Veteran filed a VA Form 9 to perfect an appeal on these issues later in August 2015. Notably, the Veteran's VA Form 9 included his request to be afforded a live Board videoconference hearing. The Veteran has not yet been provided the requested hearing on those issues, and accordingly those issues cannot be addressed by the Board at this time. The Board notes that the Veterans Appeals Control and Locator System (VACOLS) documents that those three issues remain in processing, awaiting completion of the Veteran's Board hearing, apart from the PTSD rating issue that is ready for the Board's appellate review at this time. Accordingly, this Board decision shall only address the PTSD rating issue on appeal. 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 March 2015 remand of this issue discussed the fact that, as of that time, the Veteran "was most recently afforded a VA psychological examination in March 2006." The Board explained: "Given his testimony regarding the severity of his symptoms during the January 2015 Board hearing and the length of the intervening period, another VA examination is needed to determine the current severity of his service-connected PTSD." Significantly, the Board explained that it was necessary that "[t]he examiner should identify all symptoms and impairment associated with the Veteran's PTSD, noting their frequency and severity retrospectively from January 2005 to the present, as it is the period under consideration." (Emphasis added.) The March 2015 Board remand instructions then directed that the AOJ was to "arrange for a VA psychiatric evaluation of the Veteran to determine the severity of his PTSD from January 2005 to the present," and the examiner was asked to review the record and "[p]lease identify all symptoms and impairment associated with the Veteran's PTSD, noting their frequency and severity from January 2005 to the present." (Emphases added.) The Board notes that it appears that the PTSD rating issue on appeal arises from an August 2005 claim, and thus the period for consideration actually spans as far back as to August 2004. (If an increase in disability precedes the claim by a year or less, the proper effective date is the date that the increase is shown to have occurred, or be factually ascertainable. 38 C.F.R. § 3.400(o)(2).) The Board has accordingly slightly revised its references to the period for consideration in this new discussion. Following the March 2015 Board remand, the Veteran submitted an April 2015 PTSD Disability Benefits Questionnaire completed by a psychiatrist and supporting a finding that the criteria for a 70 percent rating were met by the Veteran's pertinent symptomatology. Then, in August 2015, the Veteran underwent the VA PTSD rating examination requested in the Board's March 2015 remand. The report of the August 2015 VA PTSD examination also supports a finding that the criteria for a 70 percent rating were met by the Veteran's pertinent symptomatology. However, the August 2015 VA PTSD examination report does not present any discussion identifying the frequency and severity of symptoms retrospectively to address the appeal period dating back to August 2004. The report does not provide any information addressing when the Veteran's pertinent symptoms and impairments may be first shown to have developed. In July 2016, the RO issued a rating decision that granted an increased 70 percent rating for PTSD effective from April 13, 2015. In August 2016, the Veteran underwent another VA PTSD examination conducted by the same VA examiner that conducted the August 2015 examination. The August 2016 report resembles the August 2015 report in many respects, including that it does not present any discussion identifying the frequency and severity of symptoms retrospectively to address the appeal period dating back to August 2004. The report does not provide any information addressing when the Veteran's pertinent symptoms and impairments may be first shown to have developed. All of the key evidence developed following the Board's March 2015 remand has supported finding a level of symptom severity qualifying for a 70 percent rating for PTSD, and the Veteran has been awarded a 70 percent rating effective from the time of the creation of the earliest such evidence. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board must consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board must be able to make as informed a determination as is possible from the available evidence with regard to finding the earliest date upon which it is shown that the Veteran's service-connected PTSD became sufficiently severe to meet the criteria for an increased rating. The Board must also make a determination as to the severity of the Veteran's PTSD in all periods dating back to August 2004. The August 2015 and August 2016 VA PTSD examination reports do not present any attempt to address the matter of retrospective findings or otherwise to identify when the current level of symptomatic impairment is first shown to have emerged. The Board finds that the August 2015 and August 2016 VA examination reports are inadequate in this respect, and that remand is necessary to obtain a more adequate medical opinion on the matter (or an adequate explanation of why such an opinion cannot be provided). See Stegall v. West, 11 Vet. App. 268, 271 (1998) ("A remand by ... the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders."); see also Dinnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (finding that a VA examiner's response to questions in a Board remand order "inadequately addresses the questions posed to her and that the Board should have ensured compliance with its previous remand order by obtaining a medical opinion that addressed the remand order"); Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that once VA undertakes the effort to provide an examination, it must provide an adequate one.). Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his PTSD. If the Veteran has received private treatment that is not yet documented in the record, the AOJ should ask the Veteran to provide the releases necessary for VA to secure the records of such treatment. 2. After the record is determined to be complete, the AOJ should arrange for a retrospective VA psychiatric evaluation of the Veteran to determine the severity of his PTSD from August 2004 to the present. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. Based on examination and interview of the Veteran, and review of the record, the examiner should provide an opinion that responds to the following: Please identify all symptoms and impairment associated with the Veteran's PTSD, noting their frequency and severity from August 2004 to the present. As part of this answer, the examiner is asked to offer an opinion offering the earliest date upon which it is reasonably shown that the Veteran's current level of PTSD severity (determined by evidence in 2015 and 2016 to involve 'deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood') is shown to have been present. The VA examiner is also asked to identify all times / periods since August 2004 in which the Veteran's PTSD impairment is shown to have increased in severity. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. If it is not possible to provide such opinions / estimations without resorting to mere speculation, the examiner should please so state and provide an explanation as to why such opinions / estimations cannot be given. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above and any additional development the AOJ may deem necessary, the AOJ should review the expanded record and readjudicate the claim on appeal. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ M. C. GRAHAM 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).