Citation Nr: 21028415 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-13 357 DATE: May 11, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for posttraumatic stress disorder (PTSD) prior to November 1, 2012, and a rating higher than 50 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1989 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Board decisions in March 2015, December 2017, and December 2020 remanded the claim for additional development. In a January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 50 percent disability rating for PTSD effective November 1, 2012. As the Veteran has not been granted the maximum benefits allowed for the entire appeal period, the claims are still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board finds that more development is necessary prior to final adjudication of the claims on appeal. The Veteran's representative requests that the Board remand the claim for further development, to include obtaining relevant VA and private treatment records and a medical examination. See Appellate Brief (April 2021). The Veteran last underwent a VA examination to assess the severity of his service-connected PTSD in July 2018. Notably, in the April 2021 Appellant's Brief, the Veteran's representative indicated that the Veteran had a history of PTSD treatment in the VA health system. Given that the Veteran indicated that his service-connected PTSD had worsened and he appears to be receiving continued treatment for this disability, the Board is of the opinion that a new VA examination would be probative. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected PTSD disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). The Board additionally finds that the claims file indicates that there are outstanding, relevant VA treatment records. The claims file shows that the Veteran was receiving VA treatment for his PTSD approximately every five to six months, with mental health appointments shown in June 2018, October 2018, and March 2019. See CAPRI (April 2019). The most recent treatment record, from March 2019, shows that the Veteran was encouraged to continue his individual psychotherapy. Id. However, the claims file shows that no VA treatment records have been obtained or associated with the claims file since May 2019. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Hence, remand is necessary to obtain the Veteran's VA treatment records or confirm that there are none to obtain. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Appropriate efforts must be made to obtain all available VA treatment records to include those from the from May 2019 to the present. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected PTSD disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's PTSD disability. The examiner should also provide an opinion concerning the impact of the Veteran's service-connected PTSD disability on his ability to work. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, Associate Counsel 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.