Citation Nr: 1301899 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-46 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for Crohn's disease. 2. Entitlement to an increased rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD). 3. Entitlement to restoration of a 40 percent disability rating for service-connected traumatic arthritis of the lumbosacral spine (back disability), to include the question of propriety of a reduction in a disability rating to 20 percent disabling for the period from March 8, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1976 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over this claim is currently with the RO in Columbia, South Carolina. Preliminarily, the RO accepted a December 1, 2009 handwritten submission from the Veteran as a substantive appeal equivalent to VA Form 9 as to the service connection for Crohn's disease and increased rating for PTSD issues. In an April 2011 statement submitted in lieu of VA Form 646, the Veteran's representative correctly noted that a substantive appeal was received on December 1, 2009, and then mistakenly indicated that Veteran elected to appear before the Board at a Travel Board hearing. In fact, upon review of the language and context of the December 2009 substantive appeal, the Veteran did not request a hearing before the Board. Instead, the Veteran indicated withdrawal of the previous request for a Decision Review Officer hearing (at the RO). A subsequent statement from the Veteran's national representative, submitted in December 2012, made no mention of a Board hearing or a hearing request; therefore, the Board finds that the Veteran did not request a Board hearing of any kind, and there is no hearing request pending at this time. See 38 C.F.R. § 20.703 (2012). The Board notes that, if the claimant or the record reasonably raises the question of whether a veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for higher rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the issue of a TDIU was most recently adjudicated and denied by the RO in a June 2011 rating decision. Since that time, neither the Veteran nor the representative has asserted or contended that the Veteran is unemployable due to the service-connected PTSD or PTSD in combination with other service-connected disability. To the contrary, in a December 2012 statement, the Veteran's representative indicated that the Veteran's "occupational prospects have been described as impaired, but according to the outpatient treatment notes, this is in part due to her non-service connected physical ailments, including a claim of having Crohn's disease." As such, the holding in Rice is inapplicable because the evidence of record, subsequent to the June 2011 RO rating decision adjudicating TDIU, contains no indication that the Veteran has been rendered unemployable by the service-connected PTSD or other service-connected disability. For these reasons, the issue of a TDIU is not raised by the Veteran or evidence of record, so that the issue is not before the Board at this time, and no further action is required. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Social Security Records A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011);38 C.F.R. § 3.159(c), (d) (2012). A handwritten note that is not date stamped that is associated with the claims file indicates there may be outstanding Social Security Administration (SSA) records in this Veteran's case. It appears that the document may have been written by the Veteran's representative. The document contains three separate notations (one undated, another from August 2012, and the third from November 2012) indicating the Veteran's continued attempts at obtaining SSA records. SSA records are relevant to a claim and VA must obtain them where 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. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Here, the SSA records are potentially pertinent to the Veteran's claims (service connection for Crohn's disease and an increased rating in excess of 50 percent disabling for PTSD) because the disabilities that gave rise to SSA disability are not indicated; therefore, in this regard, the significance of the SSA records, including whether they involve Crohn's disease or PTSD, cannot be determined. Accordingly, upon remand, the RO should attempt to obtain a copy of any decision granting or denying SSA disability benefits and all supporting medical documentation. Manlincon Remand on Restoration of Back Disability Rating In April 2012, the RO evaluated the Veteran's service-connected back disability (traumatic arthritis of the lumbosacral spine) and reduced the disability rating to 20 percent from 40 percent disabling. Further procedural explanation is necessary regarding a notice of disagreement with the reduction. In "Virtual VA," a notification letter addressed to the Veteran and dated in August 2012 indicated the RO's receipt of the Veteran's "notice of disagreement" as to the issue adjudicated in the April 2012 decision (reduction of rating for traumatic arthritis of the lumbosacral spine from 40 percent to 20 percent effective March 8, 2012). Based on the RO's acknowledgement of receipt of a notice of disagreement in this letter to the Veteran, it may be administratively presumed that the RO received from the Veteran a notice of disagreement with the April 2012 decision. While neither the physical claims file nor the "Virtual VA" records include a copy of the notice of disagreement reportedly submitted by the Veteran after the April 2012 decision, subsequent action and acknowledgment by the RO (particularly, the August 2012 notification) reflect that there was some document received by the RO that sufficiently expressed disagreement with the reduction in the disability rating for a back disability. As some evidence that the RO had recognized receipt of a notice of disagreement, the "Virtual VA" records indicate that, in an April 2012 decision, the RO decreased the Veteran's service-connected back disability rating percentage to 20 percent. Such a situation is analogous to Marsh v. Nicholson, 19 Vet. App. 381 (2005), wherein the United States Court of Appeals for Veterans Claims held that, where the RO had issued a statement of the case even though there was not notice of disagreement in the record, it had to be administratively presumed that the RO issued the statement of the case only after it had made a determination that a notice of disagreement was either received or postmarked within the one-year appeal period. Based on the action in this Veteran's case by the RO (in the August 2012 notification letter) recognizing receipt of a notice of disagreement to the reduction of back disability rating action taken in the April 2012 rating decision, notwithstanding the absence of such document (notice of disagreement) in the claims file and Virtual VA, the Board may presume that a notice of disagreement was received by the RO prior to the issuance of the August 2012 notice letter. See Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 L. Ed. 131, 47 S. Ct. 1 (1926)) (holding that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties"). A review of both the physical claims file and the Virtual VA records does not reflect that the RO subsequently issued a statement of the case regarding the issue of restoration of a 40 percent disability rating for service-connected back disability, to include the question of propriety of a reduction in a disability rating to 20 percent disabling for the period from March 8, 2012. When a veteran has filed a notice of disagreement and there is no statement of the case on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Accordingly, the issue of restoration of a 40 percent disability rating for service-connected back disability, to include the question of propriety of a reduction in a disability rating to 20 percent disabling, for the period from March 8, 2012, is remanded for issuance of an statement of the case. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of any SSA decision awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such SSA disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by the SSA for the Veteran. All requests for records and their responses should be associated in the claims folder. 2. Notify the Veteran, in accordance with 38 C.F.R. § 3.159(e), if the SSA records are unavailable. 3. Issue the Veteran and representative an appropriate statement of the case addressing the issue of restoration of a 40 percent disability rating for service-connected back disability, to include the question of propriety of a reduction in a disability rating to 20 percent disabling, for the period from March 8, 2012. The Veteran should be informed of her appellate rights and of the actions necessary to perfect an appeal on this issue. Thereafter, this issue is to be returned to the Board only if an adequate and timely substantive appeal is filed. 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. 2012). _________________________________________________ J. Parker 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).