Citation Nr: 0113458 Decision Date: 05/11/01 Archive Date: 05/15/01 DOCKET NO. 00-12 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities for the period from July 2, 1992 to May 29, 1993. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities for the period from May 30, 1993, to December 3, 1997. REPRESENTATION Appellant represented by: Robert A. Friedman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and brother-in-law ATTORNEY FOR THE BOARD Stephen L. Higgs, Counsel INTRODUCTION The veteran served on active duty from January 1966 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from July 2, 1992, to May 29, 1993, is addressed in the REMAND portion of this action. FINDING OF FACT The veteran was demonstrably unable to find employment due to his service-connected PTSD for the period from May 30, 1993, to December 3, 1997. CONCLUSION OF LAW The schedular criteria for a disability rating of 100 percent for PTSD, for the period from May 30, 1993, to December 3, 1997, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION Background The veteran claims he is entitled to a TDIU based on his service-connected PTSD for the period from July 1992 to December 1997. He was denied a TDIU in an RO rating decision dated in September 1998, but was subsequently assigned a TDIU for the period from December 4, 1997, forward in an RO rating decision dated in September 1999. The veteran claims entitlement to an earlier effective date for the TDIU. The Board grants a TDIU for the period from May 30, 1993, through December 3, 1997, in this action. For the period from July 1992 to May 29, 1993, the disability picture is less clear. There are indications in the claims file that the veteran had substantial employment during some of this time and that he was receiving inpatient VA treatment for alcoholism in Denver, Colorado, in March 1993. There is also the description of the veteran's PTSD as "mild" in an October 1992 VA examination report, although the disability picture was complicated by problems with alcoholism. Further development for this period of time is directed in the REMAND portion of this action. In July 1992 and September 1992 the RO received an application, and revision of an application, respectively, for service connection for PTSD. The veteran indicated he was not currently employed and completed information requested in the block entitled "IF YOU CLAIM TO BE TOTALLY DISABLED." In the revised application, he indicated that his most recent employment, performing adult care for room and board, had ended in July 1992. Associated with his July 1992 application, the veteran submitted an October 1992 statement from a former employer, indicating that the veteran was unable to retain his employment as a home care provider for her. During an October 1992 VA examination, the examiner found that the veteran seemed to have a history and symptom complex consistent with PTSD, considered to be of mild degree. The examiner further opined that of more importance immediately was the veteran's continued abuse of alcohol, for which he had been in treatment programs several times. The veteran was also noted to tend to avoid other people and to be a loner. During an August 1994 VA psychiatric examination, the veteran was diagnosed as having alcohol dependence, currently inactive, and PTSD. The veteran was noted to have an extensive history of alcohol dependence and treatment over the years. He reported little motivation to work because his wages were garnished because he was on welfare and had to pay child support. In addition, he described combat related stressors as a result of his service in Vietnam, and significant re-experiencing of this in the form of nightmares, intrusive memories, and exposure to symbolic phenomena which reminded him of the war, such as war movies, loud noises, dark tunnels, hollering, and authority figures. He described a significant level of generalized tension and anxiety since return from Vietnam. The examiner opined that it was difficult to separate the extent of dysfunction imposed by the veteran's alcoholism versus PTSD, and that "the two may indeed be interrelated." In a September 1994 decision by a Social Security Administration (SSA) Administrative Law Judge, it was determined that the veteran met the disability insured status requirements under the laws of the SSA since May 1993, the date the veteran stated he became unable to work. The veteran was noted not to have engaged in substantial gainful activity since May 30, 1993. The medical evidence was found to establish the veteran had severe alcoholism with PTSD and some organic damage. The veteran's SSA benefits were continued in a decision dated in December 1997. The Social Security Administration records and underlying medical evidence were obtained from the SSA by the RO in August 1999. In October 1994, the veteran sustained multiple traumas when hit by a car while walking across a road. The medical evidence of record shows that he experienced multiple physical injuries, resulting in months of hospitalization, and also experienced some permanent organic brain damage as a result of the accident, further damaging his prospects for employment. During a December 1997 VA examination, the veteran was diagnosed as having PTSD, a mood disorder due to head injury with mixed features, and alcohol dependence in full sustained remission. During a May 1999 VA psychiatric examination, the examiner concluded that it was clear that the veteran could not possibly gain or sustain employment at the current time due to the level of severity of his difficulties. The examiner noted that the veteran had long-standing chronic, severe problems with PTSD. He elaborated that it appeared likely that the veteran's PTSD symptomatology would have a severe negative impact on his employability, even without the coexisting difficulties of dysthymia secondary to PTSD and the organic affective disorder which arose as a result of the closed brain injury. He opined that the veteran was unable to gain or sustain employment at the current time due to the level of severity of his emotional difficulties, predominantly his PTSD symptomatology. During his March 1999 RO hearing, the veteran described his last period of employment in early 1993 for about three or four months during which, despite difficulties with his supervisors and his disabilities, he worked a significant amount of overtime hours and made approximately $7,500. Claims Assistance Recently enacted legislation, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), contains extensive provisions modifying the adjudication of all pending claims. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law revises the former § 5107(a) of title 38 United States Code to eliminate the requirement that a claimant come forward first with evidence to well ground a claim before the Secretary is obligated to assist the claimant in the developing the facts pertinent to the claim. The other salient features of the new statutory provisions impose the following obligations on the Secretary (where they will be codified in title 38 United States Code is noted in parentheses): (1) The Secretary must provide application forms and notify the claimant and the representative, if any, if his application is incomplete, of the information necessary to complete the application (38 U.S.C.A. § 5102); (2) The Secretary must provide the claimant and the claimant's representative, if any, with notice of required information and evidence not previously provided that is necessary to substantiate the claim (38 U.S.C.A. § 5103(a)); (3) The Secretary must indicate which part of the information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary will attempt to obtain on behalf of the claimant (38 U.S.C.A. § 5103(a)); (4) The Secretary must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim (38 U.S.C.A. § 5103A(a)); (5) The Secretary must make every reasonable effort to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(b)(1)); (6) If, after making reasonable efforts to obtain relevant records, the Secretary is unable to obtain the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records, and such notification shall: (a) identify the records the Secretary is unable to obtain; (b) briefly explain the efforts that the Secretary made to obtain those records; and (c) describe any further action to be taken by the Secretary with respect to the claim (38 U.S.C.A. § 5103A(b)(2)). (7) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c) [38 U.S.C.A. § 5103A(c)], the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). (8) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) [38 U.S.C.A. § 5103A(b)] shall include obtaining the following records if relevant to the claim: (a) The claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity (38 U.S.C.A. § 5103A(c)(1)). (b) Records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records (38 U.S.C.A. § 5103A(c)(2)). (c) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain (38 U.S.C.A. § 5103A(c)(3)). (9) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) [38 U.S.C.A. § 5103A(a)] shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim (38 U.S.C.A. § 5103A(d)(1)). (a) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) [38 U.S.C.A. § 5103A(d)(1)] if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)- (i) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (ii) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (iii) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. (10) Nothing in this section [38 U.S.C.A. § 5103A] shall be construed as precluding the Secretary from providing such other assistance under subsection (a) [38 U.S.C.A. § 5103A(a)] to a claimant in substantiating a claim as the Secretary considers appropriate (38 U.S.C.A. § 5103A(g)). (11) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary (38 U.S.C.A. § 5107). The Board finds that detailed discussion of the Veterans Claims Assistance Act of 2000 is not required in the decision portion of this action, since the full benefits sought on appeal are granted for the matter decided herein, specifically for the period from May 30, 1993, to December 3, 1997. There is no prejudice to the veteran since the full benefits sought on appeal are granted for this period. Bernard v. Brown, 4 Vet. App. 384 (1993). The VCAA is further contemplated in the REMAND portion of this action. Analysis At the outset, the Board finds that the veteran's July 1992 application for benefits, on which he indicated himself to be unemployed and totally disabled, constitutes an application for a 100 percent rating or, in the alternative, a TDIU. A TDIU "is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the rating schedule." Norris v. West, 12 Vet. App. 413, 420-421 (1999). The claim for a TDIU remained unadjudicated until September 1998, and is the subject of the present appeal. It is clear that the Court of Appeals for Veterans Claims (Court) intended Norris to apply to cases where a TDIU claim pre-dated the Court's holding in Norris. Thus, in Norris, an implied unadjudicated TDIU claim that had been raised in 1987 and 1989 was held to be an open claim. Since there was no final decision with respect to the open TDIU claim in Norris, there was no final RO decision subject to CUE attack. Id. at 422. In the present case, the veteran's July 1992 claim that he was unemployed due to disability that he claimed to be service-connected constitutes an explicit TDIU claim, which remained unadjudicated until September 1998, and, as noted above, is the subject of the present appeal. The Court in Norris held that "[w]hen, as here, VA has failed to comply during the adjudication process with certain procedural requirements mandated by law or regulation, the claim remains pending in that VA adjudication process." Norris v. West, 12 Vet. App. 422 (1999). Moreover, the RO's failure to adjudicate a TDIU claim does not constitute a final denial of that claim. Id. The RO, in accomplishing its duties in adjudicating the present claim, referred the veteran's claim to the Director of Compensation and Pension Service for extraschedular consideration. The Board acknowledges that in an April 2000 administrative decision, the Director of Compensation and Pension Service determined that "[s]ince the veteran is shown to have been employed subsequent to his application for service connected disability benefits, received on July 2, 1992, the issue of IU from the date of this original claim is moot." The Director's determination was made for purposes of adjudicating entitlement to an extra-schedular evaluation. The Board is mindful and respectful of this determination, and accordingly makes no finding herein as to the veteran's entitlement to an extraschedular rating. The Board is equally mindful and respectful of the Director's implication that the original date of claim for a TDIU was July 2, 1992. VA will grant a total rating for compensation purposes based on unemployability where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. TDIU benefits may be available extraschedularly where a veteran does not meet the percentage requirements under 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) (2000). In VAOPGCPREC 16-92 (July 24, 1992), VA's General Counsel held that although the Board is an appellate body, it is required to conduct a de novo review of the RO's decision, id. at 5, citing Boyer v. Derwinski, 1 Vet. App. 531, 534 (1991); VAOPGCPREC 6-92 (March 6, 1992), and in doing so may consider arguments, subissues, statutes, regulations, or the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") analyses that were not considered by the RO if the veteran would not be prejudiced by such action. General Counsel also cited case law indicating that the Board must consider subissues of the matter on appeal even where such subissues were not developed by the RO. VAOPGCPREC 16-92 at 7. As the denial of a rating in excess of 50 percent for the veteran's individual disability ratings rendered him ineligible for TDIU benefits on a schedular basis, see 38 C.F.R. § 4.16(a) (1999), this matter must be viewed as a subissue of the TDIU question addressed by the statement of the case issued in May 2000 that denied entitlement to an earlier effective date for a TDIU. Although the November 1994 RO rating decision establishing the 50 percent rating decision was unappealed and is final, the TDIU claim which remained unadjudicated until the determination subject to the present appeal necessarily requires, under the very specific facts of this case, consideration of the subissue of the 50 percent schedular rating in effect prior to December 1997, but under a record which has been greatly supplemented since that time. The Board emphasizes that it is not herein revisiting or reopening the November 1994 prior final RO rating decision establishing a rating of 50 percent for PTSD, or in any manner reconsidering that decision or finding that there was clear and unmistakable error, or any type of error, in that decision. The RO has obtained a large quantity of new and pertinent evidence since that time, which the Board is applying to the currently pending July 1992 claim of entitlement to a TDIU. Especially noteworthy in this regard are the Social Security Administration records and underlying medical evidence developed and obtained by the SSA, in which it was determined that the veteran had met the disability insured status requirements under the laws of the SSA since May 1993. These records are highly supportive of the veteran's claim for a TDIU and were not obtained in full by VA until August 1999, many years after the now-final November 1994 RO rating decision granting service connection for PTSD and assigning a rating of 50 percent for PTSD. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (2000). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (2000). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (2000); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2000). In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1 (2000); Peyton v. Derwinski, 1 Vet. App. 282 (1991. A claim such as this one, placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. During the pendency of the veteran's claim, VA promulgated new regulations amending the rating criteria for mental disorders, effective November 7, 1996. See 61 Fed. Reg. 52,695 (1996) (codified at 38 C.F.R. pt. 4). "[W]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the veteran] . . . will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Under the version of the regulations in effect prior to November 7, 1996, a 50 percent rating was warranted when the ability to establish or maintain effective or favorable relationships with people was considerably impaired, and when by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation for PTSD was warranted where the ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent evaluation was warranted (1) when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; (2) where there were totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or (3) where the veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (in effect prior to November 7, 1996). Under the amended regulations, a 50 percent rating will be assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Code 9411 (1999). Of strong probative value in this case is the May 1999 VA examiner's opinion. After taking a careful longitudinal look at the record, he concluded that the veteran's PTSD symptomatology would have a severe negative impact on his employability, even without the coexisting difficulties of the dysthymia secondary to PTSD and the organic affective disorder which arose as a result of the closed brain injury. In the same vein, he opined that the veteran was unable to gain or sustain employment at the current time due to the level of severity of his emotional difficulties, predominantly his PTSD symptomatology. The Board's analysis in this case has been complicated by the veteran's periods of active alcoholism (possibly related to his PTSD, according to the one VA examiner who addressed the question specifically in August 1994, two months prior to the automobile accident) and the organic brain damage sustained in the October 1994 pedestrian-car accident. Thus, the VA examiner's opinion that the veteran's PTSD, isolated from these other disabilities, is productive of severe negative impact on employability, is very relevant to the issue at hand. The examination report makes clear that the examiner's determination was based on a detailed review of the medical evidence of record, going back to 1994 and earlier. There appears to be very little question that the veteran cannot work in his present condition; the very difficult question posed to VA is whether his service-connected PTSD prevented him from maintaining substantially gainful employment from July 1992 to December 1997. On the whole, though the question is a difficult one, the preponderance of the evidence, as now significantly enhanced by both a great deal of additional medical reports and perhaps some hindsight, indicates that the veteran's PTSD precluded him from working from May 30, 1993, to December 3, 1997, even prior to the nonservice-connected September 1994 organic brain injury and during times of sustained abstinence from alcohol. This determination obviates the necessity for the Board to make a determination as to whether disability due to alcohol consumption is to be considered part of the service- connected disability for this period. In determining the appropriate schedular rating for PTSD for purposes of establishing whether the veteran is entitled to a TDIU from July 1992 to December 1997, the rating criteria in effect prior to November 1996 must be considered. In the Board's view, a 100 percent rating is warranted for the period from May 30, 1993, forward because the evidence shows that for this period forward the veteran was demonstrably unable to find employment due to PTSD. This is sufficient for a rating of 100 percent under the old criteria. Johnson v. Brown, 7 Vet. App. 95 (1994). The 100 percent rating under the old criteria is carried forward through December 3, 1997, under the rule in Karnas v. Derwinski, 1 Vet. App. 308 (1991); since the benefit sought on appeal is granted under the old criteria, the newer criteria need not be considered under the facts of this case. This comports with the September 1994 determination of the Social Security Administration and the medical evidence underlying that decision. In sum, under the old rating criteria, the Board finds that a 100 percent rating for May 30, 1993, to December 3, 1997, is warranted, since the veteran was demonstrably unable to obtain or maintain employment due to his PTSD during this time. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Although jurisdiction over the subissue of the proper schedular rating for PTSD from May 30, 1993, to December 3, 1997, was assumed in contemplation of the issue on appeal, namely entitlement to a TDIU for the period from July 2, 1992, to December 3, 1997, the Board's resolution of this subissue renders moot the precise issue adjudicated, namely entitlement to a TDIU, from May 30, 1993, to December 3, 1997. As noted above, a TDIU "is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the rating schedule." Norris v. West, 12 Vet. App. 413, 420-421 (1999). A schedular 100 percent rating is the greater benefit since a schedular rating of 100 percent, unlike the TDIU rating, is a prerequisite to additional benefits, such as special monthly compensation. See 38 U.S.C.A. § 1114 (West 1991 and Supp. 2000). Also as noted above, since the disability picture is not so clear and the evidence not as fully developed for the period from July 2, 1992, to May 29, 1993, the issue of a TDIU for this earlier period is addressed in the REMAND portion of this action, below. ORDER A 100 percent rating for PTSD for the period from May 30, 1993, through December 3, 1997, is granted, subject to the provisions governing the payment of monetary benefits. REMAND The veteran seeks a TDIU for the period from July 2, 1992, to May 29, 1993. Associated with his July 1992 application, the veteran submitted an October 1992 statement from a former employer, indicating that the veteran was unable to retain his employment as a home care provider for her. By contrast, during his March 1999 RO hearing, the veteran described a period of employment in early 1993 for about three or four months during which, despite difficulties with his supervisors and his disabilities, he worked a significant amount of overtime hours and made approximately $7,500. During an October 1992 VA examination, the examiner found that the veteran seemed to have a history and symptom complex consistent with PTSD, considered to be of mild degree. The examiner further opined that of more importance immediately was the veteran's continued abuse of alcohol, for which he had been in treatment programs several times. The veteran was also noted to tend to avoid other people and to be a loner. Social Security Administration records indicate that the veteran underwent alcohol detoxification at the Denver VAMC in March 1993. The Board acknowledges that the RO has made good-faith efforts to obtain records of treatment from the Denver VAMC, but without result. During an August 1994 VA psychiatric examination, the examiner found that it was difficult to separate the extent of dysfunction imposed by the veteran's alcoholism versus PTSD, and that "the two may indeed be interrelated." Also, the August 1994 VA examination report describes the veteran as having an extensive history of alcohol dependence and treatment over the years. To what extent the veteran received such treatment at times relevant to the issue remaining on appeal is not clear from the record. The veteran will require assistance in this regard due to significant problems with memory. As noted above, recently enacted legislation, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), contains extensive provisions modifying the adjudication of all pending claims. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law revises the former § 5107(a) of title 38 United States Code to eliminate the requirement that a claimant come forward first with evidence to well ground a claim before the Secretary is obligated to assist the claimant in the developing the facts pertinent to the claim. The other salient features of the new statutory provisions are described in the decision portion of this action. In light of the foregoing, the Board finds that further development is warranted. Accordingly, the case is REMANDED for the following development: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should request the veteran to identify all VA, private and military records of treatment pertinent to his claim for an effective date of an award of a TDIU from July 2, 1992 to May 29, 1993. Securing any necessary authorizations, the RO should request copies of all indicated records that have not been previously obtained by the RO and associate them with the claims folder. The records sought must include all VA and private records of treatment or hospitalization for psychiatric disability, to include PTSD and alcohol abuse, which would be pertinent to evaluation of the level of disability due to PTSD from July 1992 to May 1993. The records sought should specifically include records of detoxification at the Denver VAMC in March 1993. If the RO is unable to obtain any such records, the RO must identify to the veteran the records it is unable to obtain, briefly explain the efforts made to obtain those records, and describe any further action to be taken with respect to the claim. Records of a Federal department or agency must be sought until it is reasonably certain that such records do not exist or that further effort to obtain these records would be futile. 3. The RO should conduct any further development appropriate pursuant to the Veterans Claims Assistance Act of 2000. 4. After completion of the above, the RO should readjudicate the appellant's claim with consideration given to all of the evidence of record, including any additional evidence obtained by the RO on remand. If the benefits sought on appeal are not granted, the veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for final appellate review. Richard B. Frank Member, Board of Veterans' Appeals