Citation Nr: 0003134 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-10 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability rating for post- traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel REMAND The veteran had active military service from March 1966 to January 1969 and from October 1969 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied an increased disability rating for the veteran's service- connected PTSD. In October 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). Additional evidentiary development is needed prior to appellate disposition of this claim. First, it is clear that the veteran's complete VA treatment records have not been obtained. VA records are considered part of the record on appeal since they are within VA's constructive possession, and these records must be considered in deciding the veteran's claim. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Statements from a VA physician indicate that the veteran has regularly attended counseling sessions at the VA Medical Center in Tuskegee since June 1996, but the most recent VA outpatient records associated with the claims file are dated in July 1996. Also, the veteran testified that he was hospitalized at Tuskegee in September 1999, and those records have not been obtained. The RO should obtain all of the veteran's treatment and hospitalization records from 1996 to the present to ensure that a complete record is before the Board. Second, VA regulations require that a physical examination be conducted when evidence indicates that there has been a material change in a disability or where it is necessary to determine the current severity of a disability. 38 C.F.R. § 3.327(a) (1999). However, the veteran was not provided a VA examination in conjunction with his claim for an increased rating. The last VA examination of record was conducted during his period of hospitalization in February and March 1997. However, he has been hospitalized at least three times since that examination. It is necessary to provide the veteran a VA psychiatric examination to evaluate the current severity of his service-connected PTSD since he has indicated that it has worsened. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) ("where the record does not adequately reveal the current state of the claimant's disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination"). Third, the claims file shows that the veteran is receiving Social Security disability benefits due to his PTSD. The RO has not requested all medical and adjudication records relating to the veteran's Social Security disability benefits, and this must be done. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight). Accordingly, this case is REMANDED for the following: 1. Obtain and associate with the claims file the veteran's medical records from the VA Medical Center in Tuskegee, Alabama, for all hospitalization and outpatient treatment from 1996 to the present. 2. Request the veteran's medical and adjudication records from the Social Security Administration. The letter requesting such records should include a citation to appropriate legal authority requiring that other Federal agencies provide such information as the Secretary may request for the purposes of determining eligibility for or amount of benefits. See 38 U.S.C.A. § 5106 (West 1991). Associate all correspondence and any records received with the claims file. 3. After obtaining as many of the above referenced records as possible, schedule the veteran for a VA psychiatric examination to evaluate his PTSD. It is very important that the examiner be provided an opportunity to review the claims folder and a copy of this remand prior to the examination. The examiner should indicate in the report that the claims file was reviewed. The examiner must provide a complete rationale for all conclusions and opinions. All necessary tests and studies should be conducted in order to ascertain the severity of the veteran's service- connected PTSD. It is requested that a Global Assessment of Functioning (GAF) score be assigned consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV). It is requested that the VA examiner discuss the prior medical evidence regarding the veteran's service- connected PTSD and reconcile any contradictory evidence regarding the level of his occupational impairment and any prior medical findings. 4. Following completion of the above, review the claims folder and ensure that the examination report includes fully detailed descriptions of all opinions requested. If it does not, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 5. After completion of the above evidentiary development, readjudicate the veteran's claim, with application of all appropriate laws and regulations. In readjudicating this claim, the RO should consider the additional evidence submitted to the Board in October 1999 and any developed upon remand. If the benefit sought on appeal remains denied, provide the veteran and his representative a supplemental statement of the case, and allow an appropriate period for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).