Citation Nr: 1308148 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-08 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to November 1, 2012, and in excess of 70 percent thereafter. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU) prior to November 1, 2012. REPRESENTATION Veteran represented by: Karl Kazmierczak, Esq. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to July 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2007 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In May 2012, the Board remanded the Veteran's claim. The VA Appeals Management Center (AMC) subsequently awarded the Veteran a 70 percent disability rating for his PTSD effective November 1, 2012 in a rating decision dated November 2012. Because the subsequent rating decision awarded a higher rating, but less than the maximum available benefit, the increase granted does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Moreover, a November 2012 supplemental statement of the case continued the denial of the Veteran's increased rating claim prior to November 1, 2012 and denied a disability rating in excess of 70 percent from that date. Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Higher evaluation for PTSD Having reviewed the evidence of record, the Board finds that a remand is required with respect to the Veteran's claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). The Board remanded the case in May 2012 in part for private treatment records identified by the Veteran from G.R., M.S. dated January 22, 2009, January 29, 2009, February 5, 2009, and February 12, 2009 to be obtained. The Veteran also stated that he had an appointment scheduled for February 26, 2009. In August 2012, pursuant to the directions of the May 2012 Board remand, the RO contacted G.R., M.S. in an attempt to obtain the identified records. A secretary for G.R., M.S. responded in September 2012 with a copy of an April 2009 treatment summary which has previously been associated with the Veteran's claims folder. G.R., M.S.'s secretary further stated that "no additional information is available as [the Veteran] discontinued treatment after that date. To date, no attempt has been made by [the Veteran] seeking additional counseling services." It is unclear from the September 2012 response by the secretary of G.R., M.S., as to whether treatment records dated January and February 2009 were available. It appears that she only reported whether records subsequent to April 2009 were available. Moreover, the Veteran has not been provided with proper notice pursuant of 38 C.F.R. § 3.159(e) that his records from G.R., M.S. dated January to February 2009 could not be obtained. Under 38 C.F.R. § 3.159(e), when VA becomes certain that private records do not exist or that further efforts to obtain them would be futile, then VA must provide the Veteran with oral or written notice of that fact. 38 C.F.R. § 3.159(e). If such notice is oral, VA must make record of the notice. Id. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA would take regarding the claim, and notice that the veteran is ultimately responsible for providing the evidence. Id. No such notice was provided to the Veteran in this matter. While the RO noted in the November 2012 SSOC that medical evidence from G.R., M.S. dated April 2009 to September 2012 was reviewed, this does not constitute proper notice under 38 C.F.R. § 3.159 in that the RO did not explain the steps it took in order to obtain the Veteran's records from January to February 2009 or give the Veteran an opportunity to submit these records himself prior to the readjudication of his claim. In light of the foregoing, the Board finds it has no choice but to remand this claim and direct the RO/AMC to obtain private treatment records dated January to February 2009 from G.R., M.S. TDIU prior to November 1, 2012 In May 2009, the Veteran submitted a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, wherein he wrote that the cause of his unemployability was "PTSD." See item # 6. In other words, he did not attribute the unemployability to any other service-connected disability or disabilities. In May 2012, the Board therefore considered a claim for TDIU raised by the record and remanded the matter for evidentiary development. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (ruling that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted). In the above-referenced November 2012 rating decision, the RO granted this claim effective November 1, 2012. However, the Veteran's claim of entitlement to TDIU prior to November 1, 2012 remains pending as part and parcel of his claim for an initial increased rating for the service-connected PTSD. The Board finds that the evidence of record prior to November 1, 2012 is unclear as to whether the Veteran's service-connected PTSD rendered him unable to obtain substantially gainful occupation. In this regard, the Board notes that the evidence of record shows that the Veteran has been unemployed since 2009. See, e.g., the November 2009 VA examination report. Moreover, multiple VA treatment records dated prior to November 2012 document Global Assessment of Functioning (GAF) scores between 45 and 50. See, e.g., a VA treatment record dated August 2009. However, November 2007 and November 2009 VA examination reports document GAF scores of 55. The Board also notes that the November 2007 VA examiner specifically reported that the Veteran's PTSD did not cause total occupational and social impairment. However, the November 2009 examiner reported such in the examination report. The Board further notes that the Veteran was afforded a VA psychological examination in November 2012. The VA examiner reported that the Veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. He also noted that the Veteran experiences difficulty in establishing and maintaining effective work and social relationships. Notably, he did not find that the Veteran's PTSD caused total occupational and social impairment. There is no other medical opinion of record which indicates whether the Veteran's PTSD rendered him unable to secure substantially gainful occupation prior to November 1, 2012. As the Board requested that the examiner provide an opinion concerning unemployability, and such opinion was not provided, clarification is required as to whether the Veteran's PTSD rendered him unable to secure substantially gainful employment prior to November 1, 2012. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must attempt to obtain private treatment records from G.R., M.S. dated January 22, 2009, January 29, 2009, February 5, 2009, February 12, 2009, and February 26, 2009. If necessary, the RO/AMC should request proper authorization from the Veteran prior to obtaining these records. If, after making reasonable efforts to obtain the records specifically identified above the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; and (c) describe any further action to be taken by the RO/AMC with respect to the claim. The Veteran must then be given an opportunity to respond. 2. The RO/AMC should obtain any VA treatment records dated after March 2012 pertaining to the Veteran's PTSD. All attempts to secure this evidence must be documented in the claims folder by the RO/AMC. 3. Return the claims file to the VA examiner who examined the Veteran in November 2012. The examiner should again review the Veteran's claims file and provide an opinion as to whether prior to November 1, 2012, it was at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD alone or in conjunction with his other service-connected disabilities rendered him unable to secure and/or follow a substantially gainful occupation. If the response is negative, the examiner should report the type or types of employment in which the Veteran would have been capable of engaging with his psychiatric disability and other service-connected disabilities, given his skill set and educational background at that time. A complete rationale for all opinions must be provided. 4. The RO/AMC should then readjudicate the Veteran's claim for increased rating, to include the claim for TDIU prior to November 1, 2012. If the benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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).