Citation Nr: 1111650 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 10-44 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include under the provisions of 38 U.S.C.A. § 1151. 2. Entitlement to service connection for a disorder manifested by headaches and loss of consciousness, to include under the provisions of 38 U.S.C.A. § 1151. 3. Entitlement to an initial disability rating greater than 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1948 to November 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Offices (RO), in New Orleans, Louisiana, which denied compensation, pursuant to 38 U.S.C.A. § 1151, for a right knee disability, syncopal episodes, and headaches; as well as a February 2008 rating decision of St. Petersburg, Florida, RO, which granted service connection for PTSD, assigning an initial 50 percent disability rating, effective June 12, 2001. In the interest of clarity, the Board deems it necessary to address the procedural posture of the claim for a higher initial disability rating for PTSD, rated 50 percent disabling. The Veteran filed a timely notice of disagreement in October 2008 as to the February 2008 rating decision which granted service connection for PTSD and assigned an initial 50 percent disability rating, requiring VA to issue an appropriate Statement of the Case and placing the claim in appellate status. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.26, 19.29, 19.30 (2010). Presently, until the October 2010 Statement of the Case was issued, this claim remained pending and in appellate status, making May 2009 and December 2009 rating decisions, purporting to address the claims, of no consequence. See Jones v. Shinseki, 619 F.3d 1368, 1371-72 (Fed. Cir 2010). Therefore, the February 2008 rating decision is the proper rating decision on appeal. Additionally, an August 2006 rating decision considered claims for a right knee disorder, syncopal episodes and headaches, based on 38 U.S.C.A. § 1151, as a single claim, and a May 2009 rating decision considered the respective claims as a single service connection claim, albeit improperly as a claim to reopen a prior denial. To ensure that the Veteran is provided all due process considerations, and in the absence of any prejudice to the Veteran, the Board has recharacterized these claims, as reflected on the title page. See Jones v. West, 12 Vet. App. 460, 464 (1999) (holding that the requirements for establishing a claim under section 1151 mirror the requirements for establishing entitlement to service connection) The Board finds that it properly has jurisdiction over the Veteran's claim seeking entitlement to a TDIU, a claim part-and-parcel of the higher initial disability evaluation for PTSD and reasonably raised in the October 2008 notice of disagreement, and included such claim on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). The Board notes that the claims file strongly suggests that the Veteran was previously represented by G.M., a private attorney. See Statement, G.M., July 26, 2006; Statement, the Veteran, August 21, 2007. In an August 2007 statement and a properly executed September 2009 Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22), the Veteran revoked the private attorney's authority to represent him and provided such authority to the Disabled American Veterans service organization. As such, the Board recognizes Disabled American Veterans as the Veteran's properly appointed representative before VA. In a statement, dated in January 2009, the Veteran raised a claim to reopen a service connection claim for a heart disorder, including coronary artery disease, to include as secondary to PTSD, but the claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. 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 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 claims so that he is afforded every possible consideration. VA has a duty to 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) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). A review of the Veteran's claims file reveals that the Veteran receives regular VA treatment related to his PTSD; however, no VA treatment records dated since December 2001 are of record. Additionally, the claims file also documents the Veteran's regular private PTSD related treatment; however, no records of this nature have been associated with the claims file since the October 2010 Statement of the Case. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). For this reason, the Board has no discretion and must remand the claim. Further, in a February 2010 statement, the Veteran competently reports that his PTSD symptomatology has worsened since his April 2009 VA examination. In light of his account of symptomatology and the many likely outstanding treatment records, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his PTSD. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran 's pertinent medical history); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, for this reason as well, the Board has no discretion and must remand this claim. Additionally, in light of Rice and the herein remand of the higher initial disability rating for PTSD, the TDIU issue must also remanded, as the claims are inextricably intertwined, and must be considered together. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Finally, an August 2006 rating decision denied service connection claims for, what are presently characterized as, (i) a right knee disorder and (ii) a disability manifested by headaches and loss of consciousness, both to include consideration under the provisions of 38 U.S.C.A. § 1151, and, in an August 2007 statement, the Veteran expressed disagreement with these determinations. The Board accepts the Veteran's statement as a timely notice of disagreement with respect to the aforementioned claims, but the RO has not issued the Veteran a Statement of the Case. See 38 C.F.R. § 20.201 (2010). Under this circumstance, the Board has no discretion and is obliged to remand the issues to the RO for the issuance of an Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). 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 shall contact the Veteran, to ascertain any private physician(s) and/or facility(ies) where he received any psychiatric/PTSD treatment(s) and/or hospitalization, to include private physicians D. Edelson, M.D., A. Lanasa, M.D., P. Landry, M.D., and the private Chautauqua Offices of Psychotherapy Center, Freeport Family and Preventive Medical Center, Ft. Walton Beach Medical Center and Twin Cities Hospital, since October 2010. Thereafter, the RO/AMC shall undertake all appropriate efforts to attempt to obtain any indicated records. All development efforts should be associated with the claims file. 2. The RO/AMC must obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's acquired psychiatric/PTSD condition, dated since December 2001. Any negative response should be in writing, and associated with the claims file. 3. After associating all outstanding records with the claims folder, the RO/AMC shall afford the Veteran a VA psychiatric examination to determine the nature, extent and severity of his psychiatric disability. The claims file must be made available to and reviewed by the examiner. All tests deemed appropriate by the examiner should be performed. The examiner is directed to report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score and comment on his social and occupational impairment related to his psychiatric disability. Thereafter, the examiner should opine as to whether, without regard to his age or the impact of any nonservice-connected disabilities, it is at least as likely as not that the Veteran's service-connected PTSD, and/or any additional disorder(s) for which service connection has been granted, if any, renders him unable to secure or follow a substantially gainful occupation. In providing the requested information, the examiner should specifically consider and address the Veteran's competent account of symptomatology and July 2009 private psychiatric hospitalization treatment records. All necessary tests and studies should be conducted and associated with the claims file. All findings and conclusions should must be supported with a complete rationale and set forth in a legible report. 4. The RO/AMC must issue a Statement of the Case with respect to the Veteran's claims seeking entitlement service connection for (i) a right knee condition and (ii) a headache/loss of consciousness condition, both to include consideration under the provisions of 38 U.S.C.A. § 1151. The Veteran, as well as his representative, should be informed of the period of time within which he must file a Substantive Appeal to perfect his appeal to the Board concerning these issues. If a timely Substantive Appeal is not filed, the aforementioned claims should not be certified to the Board. If a timely Substantive Appeal is filed, the case should be returned to the Board for further appellate consideration, if appropriate. 5. The RO/AMC shall then readjudicate the claim seeking a higher initial disability rating for PTSD, to include consideration of the assignment of a TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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).