Citation Nr: 1301368 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-44 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability 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 Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted service connection for PTSD and assigned a noncompensable evaluation, effective April 21, 2009. In a September 2010 rating decision, the RO increased the evaluation of the Veteran's PTSD to 30 percent, effective April 21, 2009. The Board finds that it properly has jurisdiction over a claim seeking entitlement to TDIU, reasonably raised by Veteran's private psychological evaluation in April 2009, and has 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 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's representative submitted written statements and evidence in October 2011 indicating that the Veteran was receiving Social Security Administration (SSA) disability benefits. Upon further review, the evidence received by the Board was for a different Veteran. The misfiled document has been removed from this claims file and forwarded for association with the correct folder. However, if indeed the Veteran is receiving disability benefits, such evidence should be of record. VA must obtain the SSA records, if either (1) there is an SSA decision pertaining to a medical condition related to the one for which the Veteran is seeking service connection or (2) there are specific allegations "giv[ing] rise to a reasonable belief" that the SSA records may pertain to the claimed disability. See Golz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim). In the instant case, there are no SSA records in the Veteran's file. Under the law, VA must attempt to obtain these records prior to proceeding with the evaluation of the Veteran's claim. Thus, the Board has no discretion and must remand the claims for further development. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (c). Further, a review of the Veteran's entire file shows that the last examination regarding the Veteran's service-connected PTSD was in November 2009. No other medical evidence or treatment records since November 2009 have been associated with the Veteran's file. Therefore, the Board finds that the Veteran should be afforded a VA examination to assess the current nature, extent and severity of this disability. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). In addition, in the November 2009 examination, the examiner noted that the Veteran's file was not available for review at the time of the examination. An examination must be based upon consideration of the Veteran's prior medical history and examinations. Id. For this reason, the claims file must be made available to the examiner for review of the pertinent medical and other history. Also, the Veteran stated in his April 2009 private psychological evaluation, provided by Dr. Anderson, that his primary care doctor was Dr. Durden. In a May 2009 written statement, the Veteran did state that he had submitted all available evidence from Dr. Anderson. However, treatment records from Dr. Durden are not contained in the claims file. Therefore, while on remand, the Veteran should be requested to identify any private treatment records relevant to his PTSD. Finally, in light of Rice and the Board's remand of the increased rating claim, the TDIU issue must be remanded because the claims are inextricably intertwined. 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.). Accordingly, the case is REMANDED for the following action: 1. Physically or electronically obtain any outstanding VA treatment records, dated since November 2009. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his psychiatric symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. The RO shall provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU, and VA's and the Veteran's responsibilities to provide evidence and information in support of a TDIU claim, which has been raised by the record. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims file. 4. Request that the Veteran identify any outstanding private treatment records relevant to his service connected PTSD, to include records from Drs. Anderson and Durden. After securing any necessary authorization from him, obtain all identified treatment records. In light of the forthcoming changes to 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. Then afford the Veteran a VA psychiatric examination to determine the extent and severity of his PTSD. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner should set forth a complete rationale for all findings and conclusions in a legible report, to include any impact of the Veteran's PTSD on his social functioning and employability. 6. Then readjudicate the appeal, to include consideration of the assignment of TDIU. If the benefits sought on appeal is not granted, the RO must issue a supplemental statement of the case and the Veteran and his representative who should be given 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. 2012). _________________________________________________ STEVEN D. REISS 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) (2012).