Citation Nr: 1220004 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 08-26 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to May 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD and assigned a 10 percent rating effective June 1, 2007. The rating assigned for PTSD was subsequently increased to 30 percent, also effective June 1, 2007. See August 2008 rating decision. Despite the increased rating granted by the RO, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement (NOD) as to an RO decision assigning a particular rating, a subsequent decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran submitted additional evidence in July 2011, after his claim was certified to the Board, which was accompanied by a waiver of consideration by the agency of original jurisdiction (AOJ). The Board notes that review of the evidence reveals that it is not pertinent to the issue on appeal. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, a back disorder, residuals of a broken nose, and pancreatitis have been raised by the record, see May 2012 written brief presentation, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 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 Additional development is needed before the Board can adjudicate either of the issues on appeal. It appears that there may be outstanding VA treatment records. The RO printed treatment records from the VA Medical Centers in Miami and West Palm Beach in November 2007 and October 2009. The earliest record of treatment is dated March 2006 from Miami and February 2007 from West Palm Beach. Review of records obtained from the Social Security Administration (SSA), however, reveals that they include VA treatment records that pre-date March 2006. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Given the foregoing, the Veteran's complete treatment records from the VAMCs in Miami and West Palm Beach must be obtained on remand. Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran has raised the issue of unemployability. See January 2008 VA Form 21-4138. On remand, the RO/AMC must send the Veteran a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011), regarding his claim for entitlement to a TDIU. The Veteran's PTSD was last evaluated in February 2009. In a February 2012 statement, he asserts that his symptoms have become chronic. When a Veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the Veteran's current condition, the VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In light of the foregoing, the Board finds that the Veteran should be afforded a contemporaneous VA examination for the purpose of ascertaining the current severity of his service-connected PTSD. This is also important given the fact that a claim for entitlement to a TDIU has been raised. As the claims are being remanded for the foregoing reasons, the RO/AMC should also ask the Veteran to indicate whether he has received any VA or private treatment for his PTSD since February 2009. If any treatment is identified, the RO/AMC should make efforts to obtain those records. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2011). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice regarding a claim for TDIU. 2. Obtain the Veteran's complete treatment records from the Miami and West Palm Beach VAMCs. 3. Ask the Veteran to indicate whether he has received any VA or private treatment for his PTSD since February 2009 and make arrangements to obtain any identified records. 4. When the foregoing development has been completed, schedule the Veteran for an appropriate VA examination to determine the current severity of his PTSD. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. All appropriate tests and studies must be accomplished and all clinical findings reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (generalized folliculitis with secondary dermatitis and PTSD, both evaluated as 30 percent disabling) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. 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. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 5. 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. 6. Finally, readjudicate the issues on appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant 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 or by the U.S. 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). _________________________________________________ M. E. LARKIN 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).