Citation Nr: 1307172	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  09-34 828	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a higher initial disability rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling from February 21, 2007.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant, his spouse, and daughters 


ATTORNEY FOR THE BOARD

L. Crohe, Counsel


INTRODUCTION

The Veteran served on active duty from January 1956 to November 1958.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that granted service connection for PTSD and assigned a 30 percent disability rating, effective from February 21, 2007.  A March 2009 rating decision denied entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).  

Although the Veteran did not file a notice of disagreement (NOD) with the decision denying entitlement to a TDIU claim, the United States Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU, whether expressly raised by a claimant or raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part and parcel of a claim for higher compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). 

The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for a higher rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  The question of TDIU entitlement will be considered a component of an appealed rating claim if the TDIU claim is based upon the disability that is the subject of the higher rating claim.  VAOPGCPREC 6-96.  Given the state of the Veteran's claim and associated evidentiary assertions, the Board will additionally address the question of entitlement to TDIU on account of PTSD.

In January 2013, the Veteran testified at a video conference hearing before the undersigned; a transcript of that hearing is of record.  

(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).)


REMAND

The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. §  3.159(c)(4).

On his October 2008 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that his PTSD prevented him from securing or following any substantially gainful occupation.  He also indicated that he left his last job due to his disability and that he received or expected to receive disability retirement benefits.  To date, SSA records have not been associated with the claims file or Virtual VA eFolder and the record is not clear as to what extent VA requested such records.  The Court has long held that the duty to assist includes requesting information and records from the Social Security Administration that were relied upon in any disability determination.  See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration , including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2).  Therefore, the Veteran's records determining his entitlement to Social Security benefits must be requested.

The record reflects that, the Veteran receives ongoing treatment at the Athens VA Community Based Outpatient Clinic (CBOC) and continues to attend group sessions at the VA medical center (VAMC); however, the last dated VA treatment record is dated from July 2009.  Ongoing VA treatment records should also be obtained.  See 38 U.S.C.A. §  5103A(b), (c); 38 C.F.R. § 3.159(b) and (e)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

As noted in the introduction, the Court has held that TDIU is an element of all appeals for higher ratings.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a Veteran's service-connected disability is rated less than total, but prevents him from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2012). 

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, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case the veteran has satisfied each of these requirements.  His inferred claim for TDIU must be decided as part of the appeal of the rating for PTSD.  Rice, supra. 

On his October 2008 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he became too disabled to work in 2004 because of his PTSD.  Given the evidence of a current disability, the Veteran's claim for the highest rating possible, and the evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice.

The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disability has on his ability to work.  Friscia v. Brown, 7 Vet. App. 294, 297 (1994).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant VA treatment records from the Atlanta VA Medical Center and Athens Community Based Outpatient Clinic since July 2009 or any other VA medical facility that may have treated the Veteran for PTSD and associate those documents either with the claims file or the Virtual VA eFolder.  

2.  Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision.  All efforts to obtain these records must be documented in the claims file.

The Veteran should be notified of the identity of any putative records that are unavailable, the efforts VA has undertaken to obtain the records, and any further action that may be taken concerning his claim, and he should be notified to submit any additional records that are in his possession.  All such notification must be documented in the claims file.

3.  After the completion of the evidentiary requested above, the Veteran should be afforded a VA examination to ascertain the current level of his PTSD and whether he is unable to secure or follow a substantially gainful occupation on account of PTSD.  The relevant documents in the claims file, to include VA treatment records and a copy of this remand should be made available to and reviewed by the examiner in connection with the examination.  Any tests deemed medically advisable should be accomplished.  

The examiner must provide findings necessary to apply the pertinent rating criteria for PTSD and provide a global assessment of functioning score with an explanation of the score's meaning.  The examiner should also provide an opinion as to whether the Veteran's PTSD, given the Veteran's occupational experience and education, results in his being unable to attain or maintain substantially gainful employment.  An explanation should be provided, with references to the record or examination findings to support the examiner's opinion(s).

4.  The AOJ should ensure that the examination report complies with the instructions of this remand.  Thereafter, the claim for a higher rating, including TDIU, should be re-adjudicated.  If a benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an 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 the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).


Department of Veterans Affairs