Citation Nr: 1307656 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-38 749 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected PTSD (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1952 to July 1954. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO, inter alia, granted service connection for PTSD and assigned a 30 percent rating, effective April 11, 2008. In April 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. In March 2010 the Veteran testified before a Decision Review Officer (DRO) at the RO, and, in June 2011, he testified during a Board hearing before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. In a decision issued in August 2011, the Board granted a 50 percent rating for PTSD, effective April 11, 2008, as well as decided three (3) other claims. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In May 2012, counsel for VA's Secretary and the Veteran's representative (the parties) filed a Joint Motion for Partial Remand. By Order dated in May 2012, the Court granted the motion, remanding only the matter of the Veteran's entitlement to a rating in excess of 50 percent for PTSD to the Board for further proceedings consistent with the Joint Motion. As explained in further detail, below, in correspondence received in January 2013, the Veteran asserted through counsel that he is entitled to a TDIU due to his PTSD. In light of that contention (and, as explained in more detail, below), the Board has expanded the appeal (as reflected on the title page) to include a claim for a TDIU due to PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal has been advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a) (2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). As a final preliminary matter, the Board notes that the claims currently before the Board are limited to those set forth on the title page. In June 2012, another VLJ of the Board remanded a separately docketed claim for service connection for a bilateral hand disability for further action. Given the timing of the appeal, it appears that the requested actions have not yet been accomplished. Following completion of the actions requested on remand, unless the benefit sought is granted in full, that matter will be the subject of a future Board decision. For reasons expressed below, the matters of a higher rating for PTSD, and the claim for a TDIU due to PTSD, are being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matters of a higher, initial rating for PTSD, and entitlement to a TDIU due to PTSD. The Board notes that the Veteran was last afforded a VA examination for evaluation of his service-connected PTSD in September 2009, more than three (3) years ago. However, April 2011 VA treatment notes, June 2011 Board hearing testimony, and a January 2013 written statement from the Veteran's spouse indicate that his PTSD may have worsened since the September 2009 examination, Accordingly, the RO should arrange for further examination of the Veteran in regard to his claim for an increased rating. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA determines that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2012). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim (as an original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655(2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. As regards the matter of a TDIU due to PTSD, the Board notes that, under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). After the joint motion was granted, the Veteran, through January 2012 correspondence by his attorney, asserted that his PTSD had worsened and that it had rendered him incapable of sustaining and retaining substantially gainful employment. His attorney contended that, as a direct result of the disabling effects of his PTSD, the Veteran had not earned an income above the poverty level since 2007. He explicitly raised the matter of his entitlement to a TDIU in the context of his claim for a higher initial rating for PTSD. As noted, this raises a claim for PTSD as a component of the matter of his entitlement to a higher rating for PTSD, which remains on appeal. See Rice, 22 Vet. App. at 447. The Board notes that the RO has not meaningfully considered the Veteran's entitlement to a TDIU due to PTSD. Therefore, after giving the Veteran an opportunity to file a formal claim for a TDIU due to PTSD (and accomplishing other actions, noted below), to avoid any prejudice to the Veteran, the RO should fully adjudicate this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Prior to adjudicating each matter, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. As regards VA records, the most recent VA treatment record associated with the claims file is dated June 28, 2011. The record reflects that, although the Veteran receives treatment from a private psychiatrist, he is occasionally evaluated in the mental health department of the Newington campus of the VA Connecticut Healthcare System. The Board emphasizes that records generated by VA 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). Accordingly, the RO should obtain from the VA Connecticut Healthcare System-to include the Newington campus-all outstanding records of relevant VA mental health evaluation and/or treatment of the Veteran for association with the claims file. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The evidence of record also indicates that there are outstanding private medical records which may be pertinent to the claim on appeal. An April 2011 VA treatment note reflects that the Veteran had recently seen his private psychiatrist -and Dr. David Johnson-and was going to see him again a few weeks later. Although the claims file contains a June 2010 letter from Dr. Johnson, it contains no psychiatric evaluations or treatment records dated prior to December 2009. To the extent possible, the subsequent outstanding private records should be obtained. Therefore, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see 38 U.S.C.A. § 5103(b) (3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain all outstanding records from Dr. Johnson. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating both matters on appeal. The RO's adjudication of the claim for a higher initial rating for PTSD should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Fenderson v. West, 12 Vet. App. 119. 126 (1999) is appropriate. If the Veteran does not meet the percentage requirement for award of a schedular TDIU, in adjudicating that claim, the RO should specifically consider and discuss whether the procedures for referral for consideration of a TDIU on an extra-schedular basis, pursuant to 4.16(b), are invoked. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. Furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU due to service-connected PTSD. 2. Obtain from the VA Connecticut Healthcare System outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran generated after June 28, 2011. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that he Veteran provide, or provide appropriate authorization for the RO to obtain, records from Dr. David Johnson dated after December 2009. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If he responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA mental disorders examination, by an appropriate medical provider, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. The examiner should provide a multi-axial diagnosis, including assignment of a Global Assessment of Functioning score that represents the level of impairment due to the Veteran's service-connected psychiatric disability, and an explanation of what the score means. The examiner should also render an opinion, based upon review of the record and consistent with sound medical principles, as to whether-without regard to nonservice-connected disability(ies) or advancing age-it is s at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected psychiatric disability, alone, renders him unable to obtain or retain substantially gainful employment. The examiner should set forth all examination findings and any test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notices of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for a higher, initial rating for service-connected PTSD, and the matter of a TDIU due to PTSD in light of all pertinent evidence and legal authority (to include with respect to the higher rating claim, whether staged rating, pursuant to Fenderson, is appropriate; and, with respect to a TDIU due to PTSD, whether the procedures of 38 C.F.R. § 4.16(b), pertaining to extra -schedular TDIUs, are invoked (as appropriate)). 9. If the benefits sought on appeal remain denied, the RO must furnish to the Veteran and his attorney an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). The RO is reminded that the appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).