Citation Nr: 1217618 Decision Date: 05/17/12 Archive Date: 05/24/12 DOCKET NO. 09-17 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from November 1965 to September 1967. These matters arise before the Board of Veterans' Appeals (Board) from January 2008 and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Acting Veterans Law Judge in August 2011. A copy of the transcript is of record. The issues on appeal at that time were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2011). Additional pertinent records were subsequently added to the claims file without waiver of agency of original jurisdiction (AOJ) consideration. The Board notes that a March 2012 rating decision granted entitlement to a temporary total rating for PTSD under the provisions of 38 C.F.R. § 4.29. The temporary total rating was assigned from July 18, 2011, to September 1, 2011. See Virtual VA records. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that a claim for entitlement to TDIU is a rating theory and "not a separate claim for benefits." See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Bifurcation of a claim is generally a matter within VA discretion. Id. at 455, n. 7. The Board finds that the TDIU issue in this case involves multiple complex medical issues and is more appropriately addressed as a separate issue. The Court has also held that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The Veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The Court has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the Veteran seeks an initial evaluation in excess of 30 percent for PTSD. The Board notes that he was provided a VA PTSD examination in June 2010, but that the evidence of record indicates his PTSD may have worsened. The June 2010 examination report noted that the Veteran's PTSD resulted in merely an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but with generally satisfactory functioning. In correspondence dated in February 2011, the Veteran's VA social worker indicated that his PTSD symptoms continued to significantly impair his occupational and social functioning, especially when he relived his combat experience through traumatic nightmares and intrusive thoughts. The June 2010 VA examination report included a Global Assessment of Functioning (GAF) score of 52. In contrast, a May 2011 private mental status examination report noted a GAF score of 45. A June 2011 VA inpatient PTSD treatment program clinical referral form reported a GAF score of 50. Furthermore, a March 2012 rating decision indicates that on July 18, 2011, the Veteran was enrolled in a 6-week PTSD treatment program at the W. G. (Bill) Hefner VA Medical Center in Salisbury, North Carolina. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a VA examination is necessary prior to appellate adjudication of this issue. In addition, the Veteran seeks entitlement to service connection for hypertension. He has claimed that his hypertension developed as a result of his service-connected diabetes mellitus; however, at his hearing in August 2011 it was also asserted that it may have developed or been aggravated by his service-connected PTSD. As such, the Board finds that the Veteran must be scheduled for a VA examination for an opinion as to the nature and etiology of his hypertension, to include as a result of a service-connected disability. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4) (2011). The Board also notes that VA treatment records show the Veteran reported he had been receiving Social Security Administration (SSA) disability benefits since 2002. The Court has held that SSA decisions are not controlling for VA purposes, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering such records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992). Where SSA disability benefits have been granted, a remand to obtain SSA records is required. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence . . . cannot be foreclosed absent a review of those records."). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have provided any treatment pertinent to the issues on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain all pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Appropriate efforts should be taken to obtain a complete copy of the Veteran's Social Security Administration benefit claim, as well as, all associated medical records. 3. The Veteran should be provided an appropriate VA examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he hypertension as a result of active service or which developed or were permanently aggravated as a result of service-connected disabilities, to include diabetes mellitus and/or PTSD. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The Veteran should be provided a VA PTSD examination for an opinion as to the nature and extent of his service-connected PTSD including any identifiable increases or decreases in manifest symptomatology since March 2007. The examination should be conducted following any applicable protocol in VA's Review Examination for PTSD (last revised April 2, 2007). The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a detailed history from the Veteran as to his PTSD symptom manifestations since March 2007, to include any occupational and social impairment with deficiencies in most areas to include work, school, family relations, judgment, thinking, or mood. The examiner should, to the extent possible, provide opinions as to all manifest symptoms of PTSD and comment as to the impact of the disability, itself or in conjunction with other service-connected disabilities on the Veteran's daily activities and his ability to maintain employment. All indicated tests and studies are to be performed. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. After completion of the above and any additional development deemed necessary, the RO should review the issues on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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. 2011). _________________________________________________ T. L. DOUGLAS 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) (2011).