Citation Nr: 22018167 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 05-38 985A DATE: March 28, 2022 REMANDED Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD), since May 3, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1977 to March 1981. The Board notes that the procedural history of the Veteran's claims pending at the VA is extensive/complicated and has been comprehensively detailed in the previous August 2019 Board remand; as such, the Board incorporates such discussion from the previous remand herein. However, since the last remand from the Board, further procedural complications regarding the Veteran's various claims have developed. To this end, in the August 2019 Board decision, the Veteran's claims for increased ratings for her service-connected right knee disorder, earlier effective date for a TDIU, and an increased rating for PTSD, from May 3, 2011, was remanded for further development. With specific regards to the Veteran's claim for increased rating for PTSD, the Veteran's claim for the earlier staged periods' ratings were decided by the Board in that same decision. As such, for increased rating for PTSD, only the staged period since May 3, 2011, will be addressed herein. With regards to the other remanded claims from the August 2019 Board remand, to include the Veteran's claims for increased rating for a right knee disability, and earlier effective date for TDIU, the Board notes that after development and the issuance of a Supplemental Statement of the Case (SSOC), the Veteran filed a VA Form 10182 Notice of Disagreement for these specific claims to "opt-in" to the Appeals Modernization Act (AMA). The Veteran elected for a hearing under the AMA, and a separate hearing for these issues was held in October 2021. The Board notes that as part of the Veteran's election to opt-in to the AMA, the Veteran's legacy claims for her increased rating claim for her right knee, and earlier effective date claim for her TDIU were withdrawn; accordingly, they will be addressed in a separate AMA Board decision. With regards to the Veteran's claim for increased rating for PTSD, the Board notes that the Veteran's VA Form 10182 did not explicitly note such claim, as such, the RO continued the Veteran's claim under the legacy system. Here, in March 2021, the Veteran was notified with regards this claim, and that the previous Veteran's Law Judge (VLJ) who conducted her hearing was no longer at the Board. The Veteran requested a second hearing with another VLJ, and a new hearing with regards to the Veteran's claim for increased rating for PTSD was held by the undersigned in October 2021. A transcript of that hearing has been made of record. 1. Entitlement to an increased rating in excess of 70 percent for PTSD, since May 3, 2011, is remanded. With regard to the claim for an increased rating for PTSD, the Board notes that the Veteran was last provided a VA examination to assess the nature and severity of her PTSD in November 2019, two and a half years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the Veteran's current level of disability with regards to all the psychiatric disabilities the Veteran currently suffers from. Specifically, the Board notes that during the Veteran's hearing before the undersigned, the Veteran, to include her partner, noted specific symptoms that were not noted in the previous VA examination. To this end, the Veteran's wife, who is her full-time caretaker, noted explicitly during the hearing that the Veteran's care for her general hygiene has deteriorated through the years to require nearly daily and constant reminders and assistant to bathe and care for her basic hygiene. The Veteran's wife also noted more severe social anxiety, especially around men, and that the Veteran essentially being increasingly isolated without prompting to engage others. Finally, the Veteran noted daily auditory hallucination which has not been previously reported of record. Here, while the Board acknowledges that, when asked during their hearing, if the Veteran's psychiatric conditions had worsened, both the Veteran and her wife responded in the negative, the substantive symptoms reported by both of them during the testimony reveals that such is to the contrary. The Board finds that neither the Veteran nor her wife has shown to have the requisite education, training, and experience, to be competent to speak to complex psychiatric matters; as such, their evaluation of the severity of the Veteran's PTSD symptoms cannot be considered competent, especially in light of the observative symptom they have reported. Consequently, a more contemporaneous examination is needed to rate the Veteran's claim for an increased rating for her service-connected PTSD. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records pertinent to the claim. 2. Schedule the Veteran for a VA examination of the Veteran's psychiatric disability. The examiner must review the claims file and must note that review in the report. The examiner is specifically asked to report on the current nature and severity of the Veteran's psychiatric disability, to include a current diagnosis. A complete rationale for any opinion expressed should be included in the examination report. The examiner should opine as to the level of occupational and social impairment due to the psychiatric disability and should describe the symptoms that cause those levels of impairment. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.