Citation Nr: 1109374 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 07-13 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with polysubstance dependence. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Craig A. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Honolulu, Hawaii. In June 2007, the RO increased the Veteran's disability rating for PTSD with polysubstance dependence to 30 percent, effective April 26, 2005. Because the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 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 The Veteran asserts that his PTSD with polysubstance dependence symptoms are more serious than those contemplated by the criteria for a 30 percent rating. He also has stated that he receives treatment for his PTSD with polysubstance dependence from the Honolulu Vet Center. A two-page letter regarding the Veteran's mental health and PTSD with polysubstance dependence symptoms was submitted by a social worker from the Vet Center. According to the letter, he received assistance from the Honolulu Vet Center approximately 3 - 4 times in 2005 and 5 - 6 times from March 2006 to December 2006. These records are not contained in the file. The duty to assist includes the duty to obtain records in the custody of a federal agency or department. 38 C.F.R. § 3.159(c)(2) (2010). The Vet Center is a part of the VA which provides counseling to assist Veteran's in readjusting to civilian life. 38 U.S.C.A. § 1712A (2010). The counseling provided may include a general mental and psychological assessment of the Veteran to determine whether the Veteran is having difficulties readjusting to civilian life. Id. According to the claims file, the RO did not attempt to obtain the Vet Center records in this case because the Veteran did not respond to a request for authorization to release the records. However, these records are VA records and should therefore have been obtained without even seeking an authorization. See 38 C.F.R. § 159(c)(2).; see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). The unavailability of psychological counseling records directly relating the Veteran's symptoms of PTSD with polysubstance dependence calls into question the adequacy of the Veteran's VA mental health examination of June 2007. Counseling records would be relevant to an examiner conducting a mental health examination because they would give the examiner a better idea of the Veteran's total disability picture. One of the requirements of an adequate opinion is that it must be based upon consideration of the veteran's prior medical history and examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Relevant counseling records were unavailable to the examiner at the time of the examination, thus the opinion was not based upon a complete medical history. While the examiner did have a two-page letter from the Vet Center discussing the Veteran's symptoms and counseling at the Vet Center, the Board cannot know with certainty whether all relevant information contained in the Vet Center records was adequately expressed in the summary. A remand to obtain the Vet Center records and a new examination is therefore necessary. The new examination should address the Veteran's eligibility for a total disability rating due to individual unemployability, as a review of the Veteran's claims file indicates the issue has been raised. In Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), the Court held that when entitlement to TDIU is raised during the adjudicatory process of an underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability. The Veteran's VA Form 9 indicates that he asserts that the symptoms of his posttraumatic stress disorder with polysubstance dependence "interfere substantially with his ability to obtain and retain substantive employment." As such, his claim for entitlement to TDIU is to be considered along with his increased rating claim. See id. The Veteran's claims file also raises the issue of whether new and material evidence has been received pertaining to the Veteran's claims for service connection for alcoholic liver disease, alcohol induced pancreatitis and alcoholic gastritis as secondary to his service-connected polysubstance dependence. These issues were originally denied by RO decision in August 1995, which cited alcohol abuse as the source of these disabilities. The denial of those issues was final as the Veteran did not appeal and they are not currently before the Board. Since that decision, the Veteran has been diagnosed with PTSD with polysubstance dependence and the most recent VA treatment records indicate the Veteran has continued problems with these disabilities which medical treatment records attribute to his alcohol abuse. Therefore, the record suggests these disabilities may be secondary to his service connected polysubstance dependence. Generally, the Board would simply refer these issues to the AOJ for consideration. However, since these issues are inextricably intertwined with the issue of entitlement to TDIU, such claims must be developed and adjudicated prior to the AOJ's readjudication of this issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (all issues 'inextricably intertwined' with an issue certified for appeal are to be identified and developed prior to appellate review). The Board also notes that Honolulu VAMC records have been obtained through June 15, 2007. These records indicate that the Veteran receives ongoing care at Honolulu VMAC, therefore current treatment records should be requested. Finally, the Board observes that the Veteran has not been provided notice in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) as to the evidence and information necessary to establish entitlement to TDIU. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2008). See also Dingess v. Nicholson, 19 Vet. App. 473 (2006). As this issue is involved in the present appeal, such notice should be provided to the Veteran upon remand. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice regarding the evidence and information necessary to establish entitlement to TDIU. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). See also 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2010). 2. Request any counseling and treatment records pertaining to the Veteran from the Honolulu Vet Center. Request Honolulu VAMC records from June 16, 2007 to the present. Responses, negative or positive, should be associated with the claims file, and requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Develop and adjudicate the reopening of the issues of service connection, as secondary to PTSD with polysubstance dependence, for alcoholic liver disease, alcohol induced pancreatitis, and peptic ulcer disease/alcoholic gastritis. A separate rating action should be issued by the AOJ and the appellant should be notified of his appellate rights. The appellant should also be informed that this new rating action, if unfavorable, will not be before the Board unless it is appealed to the Board. 4. Schedule the Veteran for a VA psychiatric examination. The claims file, including a copy of this remand and any additional records obtained, must be made available to the reviewing clinician, and the opinion should reflect that the claims file was reviewed. After reviewing the record, the examiner should identify the nature, frequency, and severity of all current manifestations of PTSD with polysubstance dependence. The examination report should include a full psychiatric diagnostic assessment including a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. The examiner should specifically comment on the impact of the Veteran's PTSD with polysubstance dependence, upon his social and industrial activities including his employability. The examiner should also describe what types of employment activities are limited because of the Veteran's PTSD with polysubstance dependence, and what types of employment, if any, is feasible given his functional impairment. Finally, the examiner should provide an opinion as to whether the Veteran's PTSD with polysubstance dependence, renders him unable to obtain or maintain substantially gainful employment. A detailed rationale should be provided for all opinions, and should reflect consideration of both lay and medical evidence, including any Vet Center counseling records associated with the claims file. 5. Thereafter, the agency of original jurisdiction (AOJ) should review the claims file to ensure that the foregoing requested development has been completed. In particular, the AOJ should review the examination/opinion report(s) to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AOJ should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completion of the above and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to an increased rating for PTSD with polysubstance dependence and/or entitlement to TDIU. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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). _________________________________________________ MILO H. HAWLEY 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).