Citation Nr: 1121928 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 09-34 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to July 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD with an evaluation of 30 percent effective July 10, 2007. In March 2011, a Travel Board hearing before the undersigned Veterans Law Judge was held at the RO. A transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. The Veteran testified during the March 2011 hearing that he is in receipt of Social Security Administration (SSA) disability benefits due to his PTSD. Thus, a request should be made to the SSA for any records pertaining to the Veteran's claim for those benefits, including any medical evidence relied upon in making the decision. Additionally, the Board notes that the report submitted by the Veteran of his Physical Evaluation Board (PEB) proceedings dated in November 2008 referenced a Temporary Disability Retirement List (TDRL) examination conducted in November 2008 by Dr. D'Agarti, which is not contained in the claims file. The report also indicates that the PEB found that the Veteran was physically unfit and recommended a permanent disability retirement with a disability rating of 70 percent for PTSD. Further, the Veteran's last VA examination for PTSD occurred in August 2007, over 3 1/2 years ago and prior to the reported November 2008 TDRL examination. At that time, the examiner's impression was that the Veteran appeared to be fully employable if the correct job with limited social interaction could be obtained, and the examiner assigned him Global Assessment of Functioning (GAF) score of 60. Recent VA treatment records reflect that the Veteran has been assigned GAF scores as low as 50. Thus, as the Veteran's PTSD symptomatology may have worsened since the last examination, a remand is required for a VA examination to be conducted to determine the current nature and severity of his PTSD. As noted above, the examination conducted in November 2008 by Dr. D'Agarti is not contained in the claims file. Also, a Licensed Clinical Social Worker (LCSW), T.J.P. MA., from the VA Pittsburgh Healthcare System indicated that he began seeing the Veteran in July 2008 in private practice. However, the records of such private treatment have not been associated with the claims file. Additionally, during the March 2011 hearing, the Veteran's representative indicated that the Veteran does not think that all of his relevant treatment records are contained in the claims file. Thus, the Veteran should be asked to identify any mental health treatment, he has received since his discharge from service and attempts to obtain any relevant treatment identified should be made. Ongoing VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Board notes that the Veteran has argued that he is unable to hold a job due to his PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Accordingly, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In addition, notice pursuant to the Veterans Claims Assistance Act (VCAA) should be provided concerning the information and evidence necessary to substantiate a claim for a TDIU. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO/AMC should request that the SSA provide copies of the records pertinent to the Veteran's claim for SSA disability benefits, including any medical records relied upon concerning that claim, and associate such records with the Veteran's claims file. 2. Contact the Veteran and request that he furnish the names, addresses, and dates of treatment of all medical care providers, VA, military, and private, who have treated him for PTSD since July 2007, to specifically include Dr. D'Agarti and T.J.P. MA., LCSW. After securing any necessary authorizations for release of this information, the RO/AMC should seek to obtain copies of any relevant treatment records identified by the Veteran that are not duplicates of those contained in the claims file. In addition, obtain VA mental health treatment records from the VA Medical Center in Columbus, Ohio dating since March 2011. 3. Issue an appropriate notice letter pursuant to the Veterans Claims Assistance Act with respect to a claim for a total disability rating based on individual unemployability. The notice should also ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. After the above has been completed to the extent possible, schedule the Veteran for a VA mental health examination to determine the current nature and severity of his PTSD. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All testing deemed necessary should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should describe all symptomatology associated with the Veteran's PTSD, provide an opinion as to whether the Veteran's PTSD precludes gainful employment, and provide a Global Assessment of Functioning score. 5. Following the completion of the above, the RO/AMC should review the evidence and determine whether the Veteran's claim may be granted, to include consideration of entitlement to a TDIU. If the claim remains denied, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 Supp. 2009). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).