Citation Nr: 1530717 Decision Date: 07/17/15 Archive Date: 07/24/15 DOCKET NO. 09-30 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to December 27, 2011. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 27, 2011. 3. Entitlement to an effective date earlier than March 7, 2013 for the grant of special monthly compensation (SMC) based on the need for aid and attendance. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from March 1950 to March 1953. His military decorations and awards include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008, August 2013, and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In the August 2008 rating decision, the RO continued the 50 percent rating for PTSD and denied TDIU. In a July 2011 decision, the Board denied an increased rating in excess of 50 percent for PTSD and denied TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Order, the Court granted a February 2012 Joint Motion by the parties to partially vacate and remand that portion of the July 2011 Board decision that denied TDIU. The Joint Motion notes that the Veteran did not dispute the Board's denial of his claim for a rating in excess of 50 percent for PTSD and, thus, that issue should be deemed abandoned. See Joint Motion, at p. 1. In January 2013, the Board remanded the issue of entitlement to TDIU. In the August 2013 rating decision, the RO granted a 100 percent rating for PTSD, effective April 23, 2012. The same month, the RO issued a supplemental statement of the case (SSOC) addressing the claim of entitlement to TDIU prior to April 23, 2012. The Veteran filed a notice of disagreement (NOD) with the denial of a rating in excess of 50 percent for PTSD, prior to April 23, 2012 and, in the February 2014 rating decision, the RO assigned a 100 percent rating for PTSD from December 27, 2011, and granted SMC based on the need for aid and attendance, from March 7, 2013. Because a 100 percent schedular rating for PTSD has been granted from December 27, 2011, the claim for TDIU is deemed moot from that date, as the Veteran's claim for TDIU is not premised on any service-connected disability other than his PTSD. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The 100 percent schedular rating assigned from December 27, 2011 specifically contemplates total unemployability (i.e., total occupational impairment) due to PTSD. Aside from PTSD (rated at 100 percent from December 27, 2011), service connection is in effect for bilateral hearing loss (rated 0 percent disabling from August 9, 2004 and 20 percent disabling from May 28, 2013), and tinnitus (rated 10 percent disabling from August 9, 2004). The Veteran has not contended, and the evidence does not otherwise show, that any service-connected disability other than PTSD, either alone or in combination with the other service-connected disability, is of such a severity so as to preclude substantially gainful employment. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to a rating in excess of 50 percent for PTSD, prior to December 27, 2011, and entitlement to TDIU prior to December 27, 2011 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT An informal claim for SMC based on the need for aid and attendance was received on January 28, 2013, but was not factually ascertainable within one year of the receipt of the claim. CONCLUSION OF LAW The criteria for SMC based on the need for aid and attendance were met effective January 28, 2013, but no earlier. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.160, 3.350, 3.352, 3.400, 3.401 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2014). The VCAA notice requirements apply to all elements of a claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was provided with the relevant notice and information regarding his claim for SMC based on the need for aid and attendance in a March 2013 letter. The claim for an earlier effective date for the grant of SMC is a downstream issue, which was initiated by an NOD. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Hence, there is no duty to provide additional VCAA notice in this case. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and post-service VA and private treatment records have been obtained and associated with the claims file. The Board notes that the increased rating and TDIU claims remaining on appeal are being remanded, below, for additional development, including obtaining outstanding treatment records. These records, however, are not pertinent to the earlier effective date issue decided below. In this regard, the significant amount of evidence of record demonstrates that the Veteran did not require the regular aid and assistance of another person, as required for the grant of SMC based on the need for aid and assistance, as late as October 2012, and an August 2012 VA treatment record specifically reports that he was independent in activities of daily living. All of the records being requested on remand are dated in March 2012 and earlier. Therefore, remand for these records would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The increased rating and TDIU claims are also being remanded for additional medical opinions; however, the requested opinions are not pertinent to the issue of entitlement to an earlier effective date for the grant of SMC. The Veteran was not afforded a VA examination specific to his claim for SMC based on the need for aid and attendance; however, the treatment records and January 2013 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) of record adequately address the issue of whether the Veteran required regular aid and attendance of another person as a result of his service-connected disabilities prior to March 7, 2013. In light of the above, remand for a medical opinion with respect to this claim is not warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). The Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Analysis In the February 2014 rating decision, the RO granted SMC based on the need for aid and attendance, effective March 7, 2013, the date of receipt of a VA Form 21-2680. In his April 2015 substantive appeal, the Veteran's attorney asserted that the Veteran had been granted SMC based on aid and attendance due to his psychiatric condition and argued that, since his psychiatric condition had been rated 100 percent disabling since December 2011, he should be entitled to an effective date of at least December 2011 for the grant of SMC. He argued that the Veteran had been seeking the highest possible rating during his claim, to include entitlement to SMC and, therefore, the issue of entitlement to SMC was intertwined with his increased rating claim. A claim for SMC is, in effect, a claim for an increased rating for service-connected disability. Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2014). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Id. at 57,686. With regard to a claim for increased disability compensation, the pertinent legal authority provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b) (West 2014); 38 C.F.R. § 3.400(o)(2) (2014). When an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.401(a). Prior to March 24, 2015, a claim was defined by regulation as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Any communication or action that demonstrates intent to apply for an identified benefit could be considered an informal claim. 38 C.F.R. § 3.155(a). Under 38 C.F.R. § 3.157(b), as in effect prior to March 24, 2015, once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of claim. Id. When the evidence is from a private physician, the date of receipt of such evidence will be accepted when the evidence furnished by or on behalf of the claimant is within the competence of the physician and shows the reasonable possibility of entitlement to benefits. Id. at (b)(2). SMC at the "l" rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Pursuant to 38 C.F.R. § 3.350(b)(3), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). On March 7, 2013, VA received a VA Form 21-2680. The RO granted SMC based on the need for aid and attendance effective from the date of receipt of this examination report. The VA Form 21-2680 received in March 2013 constitutes an informal claim for SMC based on the need for aid and attendance. See 38 C.F.R. § 3.157. The VA Form 21-2680 submitted in March 2013 reflects that the Veteran was actually examined on January 28, 2013. The examining VA physician reported that the Veteran was able to feed himself, although he needed encouragement to eat and had a decreased appetite. He indicated that due to late effects of PTSD, the Veteran required assistance with meal preparation. He indicated that the Veteran needed assistance in bathing and tending to other hygiene needs, commenting that, due to late effects of PTSD and dementia, he required cueing and reminders to complete his daily activities of daily living. The physician opined that the Veteran required nursing home care, but noted that he preferred to stay at home with care for as long as possible. The physician indicated that the Veteran required medication management, specifying that he needed reminders and assistance with administering insulin due to his dementia and service-connected PTSD. He also reported that the Veteran required full assistance in managing all finances due to his service-connected PTSD and dementia. The physician commented that the Veteran was disabled cognitively due to his service-connected PTSD, which was beginning to affect his ability to care for himself, adding that he required 24 hour care due to his active PTSD symptoms. He added that the Veteran had to be watched by caregivers at all times. The findings from the examination performed on January 28, 2013 reflect that the Veteran required aid and attendance as a result of his service-connected PTSD at that time. Under 38 C.F.R. § 3.157(b)(1), it provides that the date of the VA examination "will be accepted as the date of receipt of a claim." Thus, the date of claim is January 28, 2103. Thus, the criteria for an effective date of January 28, 2013 for the grant of SMC based on the need for aid and attendance are met. The Board recognizes that the January 2013 examination report references both the Veteran's service-connected PTSD and his non-service-connected dementia. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In May 2013, a VA examiner reviewed the claims file, examined the Veteran, diagnosed chronic PTSD and dementia, not otherwise specified, and opined that it was not possible to differentiate what symptoms were attributable to each diagnosis or what portion of the social and occupational impairment was caused by each mental disorder. Accordingly, the symptoms attributable to both the Veteran's PTSD and his dementia have been considered in determining that the January 2013 examination report demonstrates the need for regular aid and attendance because of service-connected disability. The Board finds, however, that an effective date prior to January 28, 2013 for the grant of SMC based on the need for aid and attendance is not warranted. The Veteran's attorney has argued that the Veteran had been seeking the highest possible rating during his claim for an increased rating for PTSD and asserted that he should be entitled to an earlier effective date of at least December 2011 to coincide with the grant of a 100 percent rating for PTSD. The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C.A § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). As indicated above, the Board denied a rating in excess of 50 percent for PTSD in its July 2011 decision. While the Board's decision was appealed to the Court, the Veteran explicitly states that the Veteran did not appeal the denial of an increased rating for PTSD. Rather, the Joint Motion notes that the Veteran did not dispute the Board's denial of his claim for a rating in excess of 50 percent for PTSD and, thus, that issue should be deemed abandoned. Accordingly, the July 2011 Board decision denying a rating in excess of 50 percent for PTSD is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In the February 2014 rating decision, the RO granted a 100 percent rating from December 27, 2011, based on VA treatment occurring on that date. Despite the fact that the Veteran has a currently pending claim for an increased rating for PTSD prior to December 27, 2011, the effective date for the grant of SMC based on the need for aid and attendance can be no earlier than January 28, 2013, as that is both the date of claim and the date entitlement arose. In this regard, the pertinent evidence dated prior to January 28, 2013 does not show that it was factually ascertainable that the Veteran required aid and attendance as a result of his service-connected disabilities. Although a November 2007 VA neuropsychology consultation to evaluate the Veteran for possible memory impairment reflects that the evaluating psychology intern indicated that the Veteran would continue to need support in managing his complex daily activities, during this same evaluation, the Veteran reported that he managed all of his activities of daily living. During August 2006 and May 2008 VA PTSD examinations, the Veteran reported no difficulties with activities of daily living. During VA treatment in September 2008, the Veteran reported that he received help with his IADLs (instrumental activities of daily living), adding that his sister had been paying his bills, with some help from his girlfriend; however, he indicated that he took care of his own activities of daily living. An April 2009 VA PTSD examination reports that the Veteran reported that he needed assistance with paying his bills and forgetting to lock the doors at night. The Veteran reported that he spent time reading and watching television, going out to eat, shopping, and going to the casino. The Axis I diagnoses were chronic moderate PTSD; depressive disorder, not otherwise specified; and dementia, not otherwise specified. The examiner commented that it was clear that the Veteran's cognitive impairment impacted his ability to complete his IADLs and his social functioning. In his August 2009 VA Form 9, the Veteran asserted that a higher rating for PTSD was warranted, in part, because he needed reminders from his wife to maintain personal hygiene and had a "helpless lifestyle." During VA treatment in March 2010, the Veteran reported that he was filling his medication boxes himself, which his girlfriend checked. The report of an October 2012 vocational assessment states that, in September 2011, the Veteran's primary care physician contacted VA to advise them that his dementia was worsening. The rehabilitation counselor who completed the October 2012 vocational assessment indicated that the Veteran's primary care physician was requesting in-home care for PTSD treatment to keep him from being placed in a treatment facility. Review of the September 2011 VA treatment record shows that the Veteran's private primary care physician spoke to a VA physician regarding the Veteran's worsening dementia, noting that his automobile insurance had dropped him because of too many accidents, so he was no longer driving, and he and his girlfriend needed supportive service to keep him from being placed. The private primary care physician was asking about services available for the Veteran, who was service-connected for PTSD. The VA physician indicated that he would involve case management to determine if a visiting nurse or HBPC (home based primary care) services were available and also to evaluate for aid/assistance. A September 2011 addendum reflects that HBPC had been attempted in the past, but nurses could not visit the Veteran's home because of weapons in the home. An October 2011 addendum reflects that a VA social worker contacted the Veteran's girlfriend, who reported that she prefilled the Veteran's medication box weekly, but he took his own medications. She indicated that she did not believe the Veteran needed any in-home services as he was independent in his activities of daily living. The Veteran's activities of daily living were evaluated during November and December 2011 and April 2012 VA geriatric treatment. On each date, the Veteran reported that he showered and dressed himself, and occasionally cooked, and his girlfriend paid the bills. During VA mental health treatment in February 2012, the Veteran's girlfriend reported that she managed the Veteran's medications and drove him places as he no longer had a license, but she felt she could manage him safely at home and leave him alone when she went out. It was reported on this date that the Veteran was "ok" with personal hygiene, and did some cooking. This record indicates that the Veteran and his girlfriend were aware that he might need more care as his dementia progressed. The Veteran was evaluated at a private emergency room in March 2012 after a syncopal attack. In providing his social history, the Veteran reported that he was independent in his daily activities. An August 2012 VA geriatric clinic progress note reflects that the Veteran was independent in activities of daily living. With regard to his IADLs and AADLs (advanced activities of daily living), the Veteran was described as "dependent, sometimes cooking." This record reflects that the Veteran had a recent fall in his bathroom, without loss of consciousness. On examination, the Veteran's gait was unsteady. The assessment was dementia, balance and fall, diabetic neuropathy, and skin problem. With regard to the diagnosed "balance and fall" the physician commented that the Veteran was at risk of fall and fracture due to physical inactivity and a balance problem, and would need physical therapy and a cane while walking. It was noted in an addendum that the level of stress experienced by the Veteran's caregiver was high, and respite was encouraged. An October 19, 2012 VA mental health progress note reflects that an Advanced Practice Registered Nurse urged the Veteran's girlfriend to follow-up on requesting home care services for the Veteran, as she was getting overwhelmed being his caregiver. She reported that she took him out to breakfast every morning and he went to the casino once or twice a month. On October 31, 2012, a private rehabilitation counselor interviewed the Veteran and his girlfriend by telephone and completed a vocational assessment of the Veteran. During the interview, the Veteran and his girlfriend described the Veteran's daily routine, reporting that he spent his day watching television or playing a handheld poker game. The Veteran's girlfriend reported that she set up his weekly medications, did his laundry, and reminded the Veteran to take a bath more than once a week, adding that he had needed reminders for more frequent bathing for several years. The Veteran's girlfriend stated that the Veteran took his insulin independently and could cook simple meals. The Board recognizes that the Veteran received assistance from his girlfriend with various activities prior to January 28, 2013 (as she reported prefilling his medication box in October 2011; VA geriatric treatment records dated in November and December 2011 and April 2012 show that she paid the bills; and she reported during the October 2012 vocational assessment that she set up the Veteran's weekly medications, did his laundry, and reminded him to take a bath more than once a week). Nevertheless, the Veteran's girlfriend herself indicated in October 2011 that the Veteran was independent in his activities of daily living. In February 2012, she reported that she could leave the Veteran alone at home when she went out and the record from that date reflects that the Veteran did some cooking and was able to adequately care for his personal hygiene. Significantly, the Veteran indicated during private treatment in March 2012 that he was independent in his daily activities. This is consistent with the November and December 2011 and April 2012 records documenting that the Veteran showered and dressed independently, and occasionally cooked. The Board recognizes that the Veteran's ability to complete IADLs was impacted prior to January 28, 2013, and he was described as dependent in IADLs and AADLs in August 2012, however, this same record clearly states that he was independent in activities of daily living. Of note, the instrumental activities of daily living scale is defined as, "a measurement of more complex and demanding activities of daily living required for more independent living. IADLS include using the telephone, traveling, shopping, preparing meals, doing housework, taking medications properly, and managing money." See STEDMAN'S MEDICAL DICTIONARY (28TH Ed. 2006) at 1724. AADLS vary from individual to individual and include the ability to fulfill societal, community, and family roles, as well as participate in recreational or occupational tasks. See "Up to Date" medical database. Accordingly, even dependence in IADLs and AADLs does not demonstrate that the Veteran needed regular aid and attendance of another individual because of his service-connected disabilities, as required for a grant of SMC; rather, as noted, he was described as independent in activities of daily living in August 2012, supporting the conclusion that he did not require such regular aid and attendance at that time. The Board has also considered that the Veteran's girlfriend was encouraged to follow-up on home care services for the Veteran by a VA provider in October 2012; however, during the telephone interview conducted in association with vocational assessment later that month, the Veteran's girlfriend herself stated that the Veteran took his insulin independently and could cook simple meals. The fact that the Veteran's girlfriend may have provided assistance and reminders regarding various activities prior to January 28, 2013 does not demonstrate that he was so helpless as to be in need of regular aid and attendance. Significantly, despite the October 2012 report that the Veteran's girlfriend did the Veteran's laundry, set up his medications, and reminded him to bathe, this does not demonstrate that he was unable to keep himself ordinarily clean and presentable (of note, she indicated he had needed reminders to bathe more frequently for several years). Moreover, the fact that the Veteran retained the ability to take insulin independently and cook simple meals weighs against a finding that his service-connected PTSD had become so severe to require regular aid and attendance. Rather, it appears that the Veteran's condition deteriorated between the October 2012 vocational assessment and the January 2013 examination as, in October 2012, the Veteran was able to take his insulin independently, but, by January 2013, he needed assistance with administering insulin. Thus, as it was not factually ascertainable until January 28, 2013 that the Veteran needed regular aid and attendance, an effective date earlier than January 28, 2013 is not warranted. The Board has applied the provisions of 38 C.F.R. § 3.157(b)(1) in determining that an earlier effective date of January 28, 2013 is warranted for the grant of SMC based on the need for aid and attendance, but finds that the preponderance of the evidence is against assignment of an effective date prior to January 28, 2013. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An effective date of January 28, 2013, but no earlier, for the grant of SMC based on the need for aid and attendance is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Remand is required to obtain outstanding records, to obtain a supplemental medical opinion from the May 2013 VA examiner, and to obtain an additional social and industrial survey. Records from VA Connecticut Healthcare System, dated in May 1995, October 2003 to November 2003, and April 2006 to July 2013, have been associated with the claims file; however, there is some indication that these records are not complete. In this regard, VA treatment records presently of record include a list of Global Assessment of Functioning (GAF) scores assigned between October 2007 and February 2010, printed in March 2010. This list shows that the Veteran was assigned a GAF score of 42 on March 16, 2009; however, no record from this date is presently of record. Additionally, a June 2010 VA audiological examination references a July 2009 VA treatment record reflecting that the Veteran was fit with hearing aids; however, this record is not included among the VA treatment records presently associated with the claims file. Further, a VA appointment list printed in March 2006 shows that the Veteran received treatment at the Connecticut VA Healthcare System from November 1995 to September 2006, with not all of the records identified between October 2003 and September 2006 currently associated with the claims file. A VA problem list printed in August 2012 also reflects treatment dating back to February 1997. To the extent that any outstanding VA treatment records dated between May 1995 and September 2006 and in March and July 2009 may be potentially pertinent to the claim for a TDIU prior to December 27, 2011, they should be obtained on remand. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The record reflects that the Veteran has received treatment from a private primary care physician, Dr. G. In the January 2013 remand, the Board instructed that records from this provider be obtained. The Veteran provided a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), to allow VA to obtain any and all records from Dr. G., and the RO requested records from this physician in March 2013. A second request for records from this provider was made the following month; however, no records were provided. The Veteran and his attorney were advised that medical evidence from his private provider, requested in April 2013, was not received in the August 2013 rating decision and the August 2013 SSOC. While records from Dr. G. have not been obtained from that provider, VA treatment records presently associated with the claims file reflect that records from Dr. G. were received by the VA Medical Center on several dates. In this regard, a January 2008 VA note reflects that records were received from Dr. G., with the last visit being in October 2007. A February 2008 note indicates that a letter was received from Dr. G., with an office note from January 2008. In April 2011, the VAMC received records from this provider dated in March and April 2011. A June 2011 note indicates that the April 2011 record from Dr. G. was reviewed, and notes that the Veteran's diabetes was too tightly controlled and his labs were checked due to weight loss. The note also indicates that the Veteran was taken off of Risperidone at that time. In September 2011, Dr. G. faxed a prescription for Aricept, for dementia, to the VAMC. In March 2012, the VAMC received a March 2012 progress note from this provider. In April 2012, the VAMC received another March 2012 office note from this provider, although the record suggests that this was related to a genitourinary issue. While records from Dr. G. were not obtained pursuant to the January 2013 remand, it appears that at least some of these records are in VA's possession. Accordingly, these records must be obtained on remand. Dunn, 11 Vet. App. 466-67; Bell, 2 Vet. App. at 613. Additionally, because the case is being remanded for other reasons, the Veteran and his attorney should be afforded the opportunity to obtain the Veteran's records directly from Dr. G. and submit them to VA. VA also has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). During an August 2006 VA examination, the Veteran reported that he had been brought to New Britain General Hospital three months earlier for what was thought to be a heart attack, but was a panic attack. Records from this facility have not been obtained. Additionally, a November 2007 VA treatment record indicates that the Veteran saw a private ear, nose, and throat (ENT) physician a year earlier regarding his hearing loss and was told hearing aids would not help. While some private treatment records from an ENT physician have been associated with the claims file, the most recent of these records is a letter dated in June 2005. The November 2007 VA treatment record indicates that more recent records may be available. In the January 2013 remand, the Board directed that the Veteran be scheduled for a VA neuropsychiatric examination to determine the nature and extent of his service-connected PTSD. Based on a review of the claims file and the examination findings, the examiner was instructed to offer an opinion regarding the severity of each diagnosed psychiatric disorder and the extent to which each diagnosed psychiatric disorder affected the Veteran's ability to work. The examiner was directed to describe how the symptoms of the service-connected PTSD disability, when considered by themselves alone, affected the Veteran's social and industrial capacity since 2008. The Veteran was afforded a VA neuropsychiatric examination in May 2013, and the examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity as a result of his mental diagnoses (PTSD and dementia). She opined that it was not possible to differentiate what symptoms were attributable to each diagnosis or what portion of the social and occupational impairment was caused by each mental disorder, explaining that it was not possible to separate the effects of PTSD and dementia on the Veteran's functioning because many of the symptoms, such as irritability and reduced concentration, overlapped. The examiner added, that many symptoms, such as hypervigilance, nightmares/intrusive memories, and avoidance of trauma cues were characteristic of PTSD. Later in the report, the examiner commented that it was difficult to differentiate between the Veteran's psychiatric symptoms attributable to PTSD versus dementia, observing that the Veteran was unable to express himself adequately to describe specific symptoms, although chart review indicated that his PTSD symptoms had worsened over the years. The May 2013 VA examiner opined that the Veteran's inability to work alongside others was likely the impediment for work associated with PTSD. She added that, since the Veteran's PTSD symptoms subsequently worsened after his retirement based on chart review and endorsement by his caregiver, he would likely have more difficulty in a place of employment that required interacting with others. She stated that a cognitive evaluation of record reflected that the Veteran had probable mild cognitive impairment/mild dementia and opined that the Veteran's dementia had worsened since 2007 to the severe range such that he was unlikely to be able to become gainfully employed. In June 2013, the May 2013 VA examiner responded to a request for an addendum opinion, as her report appeared to say that the Veteran's dementia rendered him unemployable but his PTSD only impacted his employability, thus implying that the symptoms of each mental disorder affecting employability could be differentiated. The examiner responded that her May 2013 report stood as written, stating that the Veteran's PTSD and dementia symptoms could not be differentiated. She stated that, prior to showing any cognitive deficits, the Veteran retired at age 62 and she described this as a period of time when he had PTSD symptoms but no dementia, noting that he and his caretaker reported that he had been able to work but had difficulty getting along with people. The examiner stated that the Veteran's reported symptoms were consistent with his PTSD presentation and pre-dated the onset of his dementia and, based on this, she was able to determine that occupational difficulties due to PTSD only were his social interaction. She stated that the Veteran began having cognitive difficulties in 2007 and, as both PTSD and dementia have overlapping symptoms, it would not be possible to differentiate between these symptoms functionally after 2007. She concluded that, as the Veteran's PTSD and dementia symptoms had merged in 2007, it was not possible to separate which symptoms prevented him from being currently employable, as both disorders would likely limit his ability to work, and emphasized that she could not determine the effect of PTSD, alone, on his social and industrial capacity since 2008 because his dementia symptoms began to surface in 2007. The May 2013 VA examiner noted that the Veteran indicated that, prior to retirement, he was able to do his job well; however he did report having difficulty getting along with people with frequent arguments. This report is inconsistent with what the Veteran reported during earlier VA examinations. In particular, during an August 2006 VA examination, the Veteran described no history of significant difficulties with his work over the years. During an April 2009 VA examination, the Veteran reported that his angry outbursts began following retirement and he reported that he had worked for many years as a drywall taper, but denied difficulties with PTSD symptoms or angry outbursts interfering with his work. As the May 2013 VA examiner relied on an inaccurate factual basis, a supplemental opinion should be obtained. Additionally, the January 2013 remand instructed that the Veteran was to be scheduled for a VA social and industrial survey to ascertain the impact of his service-connected disabilities on his capacity for employment. The examiner was instructed to evaluate and discuss the effect of all of the Veteran's service-connected disabilities (PTSD, bilateral hearing loss, and tinnitus), both singly and jointly, on his employability. Additionally, distinctions between the effects the Veteran's service-connected disabilities and his non-service-connected disorders, such as dementia, had on his capacity for employment, were to be noted. A VA psychologist reviewed the claims file and completed a social and industrial survey in December 2013. He opined that, with regard to present occupational functioning, the Veteran's prominent cognitive symptoms related to his non service-connected dementia, not otherwise specified, including his severely impaired learning and memory, would prevent him from initiating and maintaining work in any gainful capacity, particularly as he was no longer able to manage any of his instrumental activities of daily living. The psychologist added that, according to the 2007 neurocognitive evaluation, the Veteran's cognitive deficits were less severe at that time, therefore, symptoms thought to be related to his service-connected PTSD, including his persistent irritation, aggressiveness, and impulsivity, would have limited his ability to work in a capacity in close proximity to other individuals at that time. The psychologist concluded by noting that it was beyond the scope of his expertise to opine on the effects of the Veteran's other service-connected disabilities (hearing loss and tinnitus) with regard to his occupational and social functioning. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the social and industrial survey obtained in December 2013 did not address the effect of all of the Veteran's service-connected disabilities (PTSD, bilateral hearing loss, and tinnitus), both singly and jointly, on his employability, a new social and industrial survey should be obtained. The claim for increase for PTSD prior to December 27, 2011, is inextricably inter (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD, hearing loss, and/or tinnitus and/or his non-service-connected dementia, which are not currently of record. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file. Advise the Veteran and his attorney that they may obtain the Veteran's treatment records from Dr. G. and submit them to the AOJ. A specific request should be made for: (i) any outstanding records from the VA Connecticut Healthcare System (to include the Newington and West Haven Campuses), dated between May 1995 and September 2006, dated in March 2009, (to include a record assigning a GAF score of 42), and dated in July 2009 (to include a record showing the issuance of hearing aids); (ii) any records from the Veteran's private primary care physician, Dr. G., which are included in his VA treatment records (to include records referenced in January and February 2008, April, June, and September 2011, and March and April 2012 VA treatment records); (iii) any records from New Britain General Hospital dated around May 2006 (as referenced during the August 2006 VA examination), and; (iv) any records from the Veteran's private ENT physician dated in 2006, as referenced in a November 2007 VA treatment record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After all available records have been associated with the claims file, forward the claims file to the VA examiner that conducted the May 2013 VA examination, if available, for a supplemental medical opinion. The claims file must be made available to, and reviewed by, the examiner. The examiner is informed that the Veteran's report that he had difficulty getting along with people and had frequent arguments while he was still working is inconsistent with statements he made earlier. For example: * In an August 2006 VA examination report, it shows that the Veteran reported that he had recent problems with his level of irritability and angry outbursts and "described no history of significant difficulties with his work over the years." See page 4 of the examination report. * In an April 2009 VA examination report, it shows that the Veteran reported that his angry outbursts began following retirement and he reported that he had worked for many years as a drywall taper, and denied difficulties with PTSD symptoms or angry outbursts interfering with his work. See page 4 of the examination report. * The Board finds that the statements made by the Veteran in August 2006 and April 2009 about his employment history to be highly reliable and that his allegation of not getting along with co-workers while he was still working to be not true. The examiner is asked to offer an opinion regarding the severity of each diagnosed psychiatric disorder and the extent to which each diagnosed psychiatric disorder affected the Veteran's ability to work during the period from April 2007 to December 2011. The examiner must describe how the symptoms of the service-connected PTSD disability, when considered by themselves alone, affected the Veteran's industrial capacity between April 2007 and December 2011. The examiner must provide a complete rationale for any opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the May 2013 VA examiner is not available, or is unable to provide the requested opinion, forward the claims file to another appropriate examiner to obtain the requested opinion. The claims file must be made available to, and reviewed by, the examiner. 3. After the above development is completed, forward the claims file to an appropriate examiner to obtain a Social and Industrial Survey with respect to all of the Veteran's service-connected disabilities. The claims file must be made available to, and reviewed by, the examiner. The examiner must set forth pertinent facts regarding the Veteran's medical history, education, employment history, and social adjustment. The Veteran has an eighth grade education and worked as a dry wall taper for several decades. The examiner is requested to answer whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities alone, which consisted of PTSD, hearing loss, and tinnitus, and without consideration of his age or nonservice-connected disabilities, rendered him unable to secure or follow a substantially gainful occupation at any time between April 2007 and December 2011. The social worker is advised that, if the answer to this question is in the negative, he or she is requested to discuss the type or types of employment in which the Veteran would be capable of engaging, given his skill set and educational background. A report of the opinion should be prepared and associated with the claims file. A comprehensive rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claims, considering all evidence of record. If any benefit sought remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs