Citation Nr: 21007080 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-09 990 DATE: February 8, 2021 REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded the Veteran’s claim. It is noted that, during remand status, the Veteran attempted to opt into the modernized appeal system by submitting a VA Form 10182. However, he did not identify the appeal option on his VA Form 10182 (e.g. Direct, Evidence, of Hearing) and he did not respond to a September 2020 Board letter requesting clarification. Therefore, the appeal remains in the legacy system. Entitlement to a rating in excess of 50 percent for PTSD. The Veteran continues to contend, via his representative, that his symptoms warrant a higher rating, because they include suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control, and difficulty in adapting to stressful circumstances. See Informal Hearing Presentation (August 2019). He has also asserted that the severity, frequency, and duration of his symptoms also supports entitlement to a higher rating. See id. To ensure that VA has met its duty to assist, remand is again necessary to obtain a new VA examination and outstanding VA and private treatment records. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). With regard to VA examination, in October 2019, the Board remanded the appeal so that the Veteran could be afforded a VA examination to assess his PTSD symptomatology. While a new VA examination was obtained in February 2020, it does not comply with the Board’s remand directives and is inadequate for rating purposes because it did not reflect any indication or meaningful discussion of the severity, frequency, and duration of the listed symptoms despite its October 2019 directives to elicit information regarding the severity, frequency, and duration of PTSD symptoms. See Stegall, supra. First, there are numerous incongruities within the February 2020 VA PTSD examination report. Under the header of “4. Symptoms,” the report lists depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, which is incongruous with the information contained under the header of “3 PTSD Diagnostic Criteria.” Further, although irritability, for example, was not listed as a symptoms of his PTSD under “4. Symptoms,” the examination report indicates elsewhere that the Veteran’s irritability associated with his diagnosis of PTSD resulted in significant distress or impairment in social, occupational or other important areas of functioning. Second, the examination does not reflect any indication or meaningful discussion of the severity, frequency, and duration of the identified symptoms of PTSD – irritable behavior and angry outbursts, hypervigilance, exaggerated startle response and sleep disturbance. Third, the February 2020 VA PTSD examination reflects that the Veteran’s PTSD symptoms were productive of “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” This is incongruous with the finding that the Veteran’s “PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Given the above, remand is necessary to ensure that VA has met its duty to assist. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination it must provide one that is adequate for purposes of the determination being made.). With regard to outstanding treatment records, while the Veteran completed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs, including for private providers (Dr. L. Natale and Rev. D. Cooper, MA) and VA Medical Center in East Orange, New Jersey, this request was rejected on the basis that the providers are “non-private.” See Correspondence (January 2020). It appears that the response applies only to the VA Medical Center in East Orange, and that request for private treatment records from Dr. Natale and Rev. Cooper remains outstanding. See Stegall, supra. Nor was the Veteran notified that his private treatment records were not obtained and that he had the option to submit those records to the VA. Significantly, the February 2020 VA examination indicated that the Veteran continues to receive mental health treatment via his private provider, Rev. Cooper. On remand, the Veteran should be informed that his December 2019 and January 2020 VA Forms 21-4142 and VA 21-4142a have expired and can no longer be used to obtain his private treatment records. He should be advised that in order for VA to obtain the records he must submit new VA Forms 21-4142 and 21-4142a. Further, the Board observes that the VA treatment records reflect that private medical records had been scanned into the record and note Vista-Imaging-scanned documents. However, the VA treatment records in the claims file do not include those scanned (Vist-A Imaging) documents. Given the above, remand is necessary to obtain the relevant outstanding treatment records, which should then be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the Present. Associate copies of all treatment records from private treatment providers that have been scanned into the Vist-A Imaging system with the Veteran’s claims folder. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his PTSD, to include records from Dr. L. Natale and Rev. Cooper. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.