Citation Nr: 1301607 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-30 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service in the United States Army from March 1950 to March 1953, including combat service in Korea for which he was awarded the Combat Infantry Badge (CIB). This case originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Hartford, Connecticut. That rating decision denied an evaluation in excess of 50 percent for the posttraumatic stress disorder (PTSD) disability and also denied the appellant's claim of entitlement to a total disability rating based upon individual unemployability (TDIU). The Board denied a disability rating in excess of 50 percent for the PTSD disability and entitlement to TDIU in a decision issued in July 2011. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2012, the parties filed a Joint Motion for Partial Remand. A March 2012 Order of the Court granted the Joint Motion for Partial Remand and vacated the Board's decision to the extent that it denied TDIU. The case was remanded to the Board for action consistent with the terms of the Joint Motion pursuant to the provisions of 38 U.S.C.A. § 7252(a). The appellant's attorney submitted additional evidence to the Board in November 2012; this evidence consisted of a vocational assessment report dated in October 2012, and copies of VA treatment records dated between February 2010 and August 2012. Because the appellant's attorney has provided a written waiver of pertinent records that were not reviewed by the AOJ, referral to the RO of that evidence is not required. In any case, since the case is being remanded, the RO will nevertheless have the opportunity to consider these newly-submitted records. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The evidence of record indicates that the appellant's service-connected PTSD may have increased in severity since the most recent VA examination of April 2009. At that time he had a current and past year score of 52 on the Global Assessment of Functioning (GAF) rating scale (a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness). The medical evidence added to the record in November includes VA treatment records dated between February 2010 and August 2012. These records indicate that the appellant was assigned a GAF score of 45 in October 2010, 40 in December 2011, and 39 in July 2012. The evidence of record does not include any VA treatment records dated between September 2009 and January 2010. In addition, the evidence of record does not contain any treatment records from the Vet Center dated after November 2006. An August 2009 letter from the Vet Center stated that the appellant had been in receipt of treatment since February 2006, and that the appellant had a current treatment plan. Records generated by federal facilities that may have an impact on the adjudication of a claim are considered constructively in the 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). While the case is in remand status, VA must obtain all of the appellant's Vet Center records from 2006 onward, as well as all VA inpatient and outpatient treatment records for the period from September 2009 onward. All records obtained must be associated with the claims file. Furthermore, review of the VA treatment records added to the claims file in November 2012 reveals that the appellant has been in receipt of primary care treatment from a private physician, including treatment for dementia. A March 2012 VA treatment note indicates that the appellant had undergone a complete dementia workup at the Midstate Medical Center. None of these records have been associated with the claims file. The evidentiary record indicates psychiatric diagnoses of dementia, cognitive deficits and memory loss in addition to the service-connected PTSD. The evidence of record also indicates that the appellant left school at the age of sixteen when he was in the eighth grade. The evidence of record does not provide a basis for the Board to distinguish between symptoms of the appellant's service-connected PTSD and other diagnosed psychiatric disorders that may be present. When it is not possible to separate the effects of a service-connected psychiatric disorder from a non-service-connected psychiatric disorder, 38 C.F.R. § 3.102 (requiring favorable resolution of reasonable doubt) dictates that all signs and symptoms be attributed to the service-connected psychiatric disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to non-service-connected disability and service-connected disability in the absence of medical evidence which does so). There is no clear medical opinion of record on this point. Therefore, the Board finds that a VA neuropsychiatric opinion is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The medical evidence of record is insufficient for the Board to render a decision. The considerations described above require a remand for further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the appellant and obtain the names and addresses of all medical care providers (private, VA, or other government) who have treated him for his service-connected PTSD or his non-service-connected dementia since April 2008. After securing the necessary release(s), obtain such records. In particular, these records should be obtained: * all records from Dr. Gimbel; * Midstate Medical Center for the appeal period; * all Vet Center records beginning in April 2006; * VA treatment records dated from September 2009 to March 2010 and from August 2012 to the present. 2. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his attorney should also be informed of the negative results and be given opportunity to secure the records. 3. After completing any additional notification and/or development action deemed warranted by the record, schedule the Veteran for a VA neuropsychiatric examination by an examiner with experience with geriatric patients in order to determine the nature and extent of his service-connected PTSD. All appropriate testing must be accomplished. (a) The examiner must review the appellant's entire psychiatric history in order to construct an overall picture of his psychiatric status over the years since 2008. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) and this remand must be made available to the examiner for review in conjunction with the examination. The examiner must indicate that said review was accomplished. If the physician does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the physician for review. (b) To the extent possible, the examiner must indicate the historical degree of impairment due to the service-connected PTSD disability, as compared with the impairment due to other psychiatric disorders and/or physical disabilities, including dementia. The examiner must express an opinion as to what portion of the appellant's psychiatric symptomatology is attributable to only his service-connected PTSD disability and what portion is attributable to non-service-connected pathology, including dementia. (c) Based on a review of the claims file and the examination findings, the examiner must offer an opinion regarding the severity of each diagnosed psychiatric disorder and the extent to which each diagnosed psychiatric disorder affects the Veteran's ability to work. The examiner must describe how the symptoms of the service-connected PTSD disability when considered by themselves alone have affected the Veteran's social and industrial capacity since 2008. (d) The examiner must provide a Global Assessment of Functioning (GAF) Score indicating the level of impairment produced by the service-connected PTSD disability alone for the years from 2008 to the present. (e) If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an opinion concerning the severity of the Veteran's PTSD without result to mere speculation, the examiner must state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the appellant's PTSD. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After completing any additional notification and/or development action deemed warranted by the record, schedule the appellant for a VA social and industrial survey to ascertain the impact of his service-connected disabilities on his capacity for employment. The claims file must be made available to the examiner for review. The examiner must elicit and set forth pertinent facts regarding the appellant's medical history, education, employment history, social adjustment, and current behavior and health. The examiner must discuss the appellant's pre-service intellectual functioning and his educational achievement, including the fact that he was in the eighth grade at the age of sixteen. The examiner must offer an assessment of the appellant's current functioning and identify the conditions which limit his employment opportunities. The examiner must evaluate and discuss the effect of all of the appellant's service-connected disabilities (PTSD, bilateral hearing loss and tinnitus), both singly and jointly, on his employability. Distinctions between the effects the appellant's service-connected disabilities and his non-service-connected disorders such as dementia have on his capacity for employment must be noted. 5. If either examiner determines that some additional examination or testing is necessary, schedule the appellant for said examination or testing. 6. Upon receipt of the VA examination reports, review the reports to verify that all requested opinions have been offered. If information is deemed lacking, refer the report to the VA examiner(s) for corrections or additions. 7. If any additional development is necessary to re-adjudicate the issue on appeal, especially in light of any newly-received records, that development must be done. 8. If any benefit sought on appeal remains denied, the appellant and his attorney should be provided a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ Alexandra P. Simpson 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) (2012).