Citation Nr: 1122374 Decision Date: 06/09/11 Archive Date: 06/20/11 DOCKET NO. 09-06 924A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a permanent 100 percent disability evaluation for service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to eligibility for Dependents' Educational Assistance under U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1999 to July 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran requested that the file be transferred to the RO in St. Petersburg, Florida in March 2009 and that office now has jurisdiction over the claim. In August 2010, the Veteran appeared before the undersigned Acting Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. 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. This remand addresses development pertaining to the issue of entitlement to a permanent 100 percent disability evaluation for service-connected post-traumatic stress disorder (PTSD). As the issue of entitlement to eligibility for Dependents' Educational Assistance under U.S.C. Chapter 35 is intertwined with the remand issue, a decision on that issue will be deferred pending completion of the requested development. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends his currently assigned 100 percent disability evaluation for PTSD, which was assigned in June 2008, should be made permanent. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). Once permanence is established, a Veteran need not undergo further VA examinations in order to retain his total disability rating for the permanent disability. 38 C.F.R. § 3.327(b)(2)(iii). As noted above, the Veteran was assigned a 100 percent disability evaluation for PTSD in June 2008. This was made effective from July 27, 2006. Neither the VA outpatient treatment records in the file regarding PTSD and dated from 2006, his April 2008 VA examination, which is the most current medical documentation in the claims file, nor the August 2010 statement from a VA nurse practitioner provide a prognosis or an opinion as to the permanency and likelihood of improvement in his disability. Permanence is a factual determination, which requires competent medical evidence, and neither the Board nor the RO may exercise its own independent medical judgment on such a question. See KL v. Brown, 5 Vet. App. 205 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, the Board finds that a follow-up VA examination is required to ascertain whether the Veteran's current rating of total disability is reasonably certain to continue throughout his lifetime. Additionally, the Veteran has testified before the undersigned that he is receiving treatment from a private examiner for his PTSD-Dr. Lawler. He testified that he has been treated by Dr. Lawler since October or November 2009. None of those records are in the file. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran has also reported that he is also in current VA treatment for PTSD at the Bay Pines VA Medical Center, and that there should be follow-up notes at the VA medical center in Massachusetts where he used to live before moving to Florida in January 2009. The most recent VA outpatient treatment records in the file are dated in April 2008 and these are from the medical center in Boston. There are no VA treatment records in the file from the VA facility in Bay Pines. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Therefore, the RO should request all VA medical records pertaining to the Veteran that are dated from 2008 from the VA medical center in Boston and all VA treatment records in the file for the Veteran from the VA facility in Bay Pines. At his Board hearing, the Veteran stated that he went through Vocational Rehab but it didn't work out. His Voc Rehab (VRE) file has not been associated with the file. Such records should be obtained and considered in the adjudication of the Veteran's claim. Finally, the Board notes that the Veteran was never notified of the criteria necessary to establish a permanent rating for his PTSD, once he requested permanency thereof. This notification must be accomplished. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Provide notice to the Veteran with respect to his claim for permanency of his evaluation for service- connected PTSD, as required by VCAA. Allow the Veteran a reasonable amount of time to respond. 2. Contact the Veteran, and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Specifically, in contacting the Veteran, the RO must request that the Veteran provide authorization such that the RO may attempt to obtain the private treatment records from Dr. Lawler as noted above. Based on the Veteran's response, the RO must attempt to procure copies of all records from all identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain these records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran and his representative must then be given an opportunity to respond. 3. Obtain complete records of the Veteran's treatment at the VA medical facility in Bay Pines, Florida, and treatment records from the VA medical facility in Boston, Massachusetts since April 2008. If these records are unavailable, simply do not exist, or further attempts to obtain them would be futile, document this in the claims file. See 38 U.S.C.A. § 5103A(b). 4. Obtain and associate with the claims file the Veteran's complete vocational rehab file. In addition to information contained in a VRE folder, any report regarding infeasibility of training should be obtained. If these records are unavailable, simply do not exist, or further attempts to obtain them would be futile, document this in the claims file. See 38 U.S.C.A. § 5103A(b). 5. Then schedule the Veteran for an examination by a VA psychiatrist knowledgeable in assessing PTSD to determine whether his current rating of total (100 percent) disability is reasonably certain to continue throughout his lifetime, and whether the probability of permanent improvement under treatment is remote, consistent with the criteria set forth in 38 C.F.R. § 3.340(b). Any and all studies deemed necessary, including psychological examination/testing, should be completed. The claims file, including a copy of this Remand, must be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review was accomplished. Rationale must be provided for the opinion reached. 6. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010); See also Stegall v. West, 11 Vet. App. 268 (1998). 7. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2010). _________________________________________________ TARA L. REYNOLDS Acting 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).