Citation Nr: 1120705 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 07-37 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a compensable rating for hemorrhoids. 2. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2007, November 2008, January 2009, and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC and New York, New York. Jurisdiction is currently with the RO in New York. The Veteran testified before the undersigned Veterans Law Judge at an April 2010 hearing, and a transcript of this hearing 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. REMAND The Veteran is seeking increased ratings for hemorrhoids, degenerative disc disease of the lumbar spine, and PTSD. He was last afforded examinations of hemorrhoid in January 2007, lumbar spine in September 2008, and psychiatric disability in January 2009. He has testified that all three disabilities have worsened since his last examinations. Generally, VA has a duty to provide additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). Accordingly, the Veteran should be scheduled for new examinations to determine the current severity of these conditions. Additionally, all VA treatment records through the present should be associated with the claims folder. The Veteran also testified at his April 2010 hearing that he receives disability benefits from the Social Security Administration (SSA). No clear determination as to the availability of any records which may have been in the possession of the SSA has been made. The possibility that SSA records could contain relevant evidence cannot be foreclosed absent a review of those records. See Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Accordingly, on remand, the RO should attempt to obtain any available SSA records, including any medical records he submitted in support of the SSA claim. Finally, a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, as part of a claim for increased compensation. Thus, although the issue of TDIU was not addressed by the RO, the Board must address whether the Veteran is entitled to TDIU for any time during the appeal period. The Board has listed the TDIU issue as a separate claim for administrative purposes. The Veteran has indicated that he has not worked since 1997 due to his low back disability and a social worker treating his PTSD submitted a letter in which she stated that his acquired psychiatric disability renders him "permanently unemployable." On remand, the RO should obtain a VA medical opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's service connected disabilities alone, without consideration of any non-service connected medical conditions, render him incapable of finding and maintaining substantially gainful employment. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the Bronx VA Medical Center for the period from July 2009 to the present and associate them with the Veteran's claims folder. 2. Obtain the Veteran's records from the Social Security Administration, including any medical records he submitted in support of his claim, and associate these records with the claims folder. If these records cannot be obtained, a formal finding of unavailability should be placed of record. 3. Schedule the Veteran for examinations of the following: 1) hemorrhoids; 2) degenerative disc disease of the lumbar spine; and 3) PTSD. The examiners should note any functional impairment caused by the disabilities, including a full description of the effects of his disabilities upon ordinary activities, if any. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiners, who should indicate in their examination reports that they reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The examiners are also asked to offer an opinion of whether it is at least as likely as not (fifty percent or greater) that the Veteran's service-connected disabilities alone, without regard to any non-service connected health problems, render him unable to find and maintain substantially gainful employment. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ L. HOWELL 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).