Citation Nr: 1309151 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 11-21 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1965 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for PTSD, rated 50 percent. (The Board notes that the RO's adjudication of this issue described the matter as arising from an April 2010 rating decision denying an increased rating. However, the Board finds that the Veteran's January 2010 correspondence seeking a higher PTSD rating and stating "I totally disagree with the 50% ruling" was a timely notice of disagreement (NOD) initiating an appeal of the March 2009 rating decision (assigning the initial rating for PTSD.) In July 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the Veteran's claims file. The Veteran has submitted additional evidence to the Board for which his representative submitted a waiver of initial Agency of Jurisdiction (AOJ) consideration. However, as this matter must be remanded for other reasons, the AOJ will have the opportunity to review the complete expanded record and appropriately readjudicate the claim. The Veteran's contentions, including in his July 2012 Board hearing testimony, have raised a claim for a total disability rating based on individual unemployability (TDIU) as part of the increased rating claim on appeal (see Rice v. Shinseki, 22 Vet. App. 447 (2009)). Such matter is also addressed in the remand, below. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. 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 appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. The Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to the claim currently on appeal. See 38 C.F.R. § 3.159 (2012). The most recent records of VA treatment associated with the claims file (including in the "Virtual VA" digital claims file) are from January 2011. However, the Veteran has presented clear indications that more recent VA treatment records exist and may be pertinent to this appeal. The most recent report of a VA examination in this matter is dated in April 2011. This report's discussion of the Veteran's psychiatric history and treatment clearly reflects that he was receiving pertinent ongoing mental health treatment from VA providers. "[H]e sees Dr. Flake once every couple of months for medications.... [H]e has been seeing Dr. Wolford since 2008, but Dr. Wolford just retired, so now he is going to start seeing Mr. Hart. He says he is seen about once every two weeks." During the Veteran's Board hearing in July 2012, the Veteran responded to a question ("your treatment provider say[s] that that's a symptom of your PTSD, is that correct?") by stating "Yes, sir. Both at the VA hospital here and my outside source." This response further suggests continuing pertinent treatment was being provided by a VA facility and that a VA treatment provider may have expressed a pertinent medical opinion concerning the symptoms of the Veteran's PTSD. The most recent records of VA treatment associated with the claims file are from January 2011. Accordingly, the record suggests that more than two years of VA mental health treatment records pertinent to this claim are remain outstanding. As the more recent VA treatment records are constructively of record and likely contain information pertinent to the Veteran's claim, they must be secured. Additionally, the Veteran's response to the above-discussed question at the Board hearing may be understood to suggest that he also receives pertinent treatment from a private "outside source," although he may have simply been referring to the May 2012 private medical opinion arranged to provide evidence on this claim. In any event, remanding this case at this time provides the opportunity to ask the Veteran for clarification identifying any and all of his mental health treatment providers and to obtain all pertinent records. Records of such treatment would be pertinent evidence to the issue on appeal. The Veteran is advised that a governing regulation provides that where evidence requested in connection with a claim for VA benefits (to include identifying information and releases for private treatment records) is not received within a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). As this matter must be remanded for additional development for other reasons, the Board finds it reasonable after review of the claims file to provide the Veteran with a new updated VA psychiatric examination to address certain medical questions and evaluate any increase in severity of the pertinent psychiatric symptoms since the most recent April 2011 VA examination report. The Board observes that there has been some suggestion that the Veteran's PTSD may have increased in severity since the most recent VA examination in April 2011. In this regard, the April 2011 VA psychiatric examination report notes that the Veteran "appears to be considerably to severely impaired" with regard to "his ability to maintain employment, perform job duties ...." The May 2012 private medical opinion submitted by the Veteran may suggest more severe impairment in this regard in describing that the Veteran "is not a candidate for the active work force in any capacity. He is totally unable to seek gainful employment in my opinion." To the extent to the new evidence suggests an increase in the severity of the disability since the most recent VA examination, and as this case must be remanded for other reasons in any event, another examination is appropriate. See 38 C.F.R. § 3.159; see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Additionally, the Board notes that certain items of pertinent evidence in this case, including the May 2012 private medical opinion submitted by the Veteran, indicate that he now has a diagnosis of bipolar disorder in addition to his service-connected PTSD. The May 2012 private medical opinion's discussion of the severity of the Veteran's psychiatric disability actually features a broad discussion of disability associated with three identified diagnoses: (1) PTSD, (2) bipolar disorder, and (3) temporal lobe seizures or partial complex seizure disorder, secondary to concussion in service. The RO denied service connection for bipolar disorder in the April 2010 RO rating decision (the Veteran's notice of disagreement did not appeal the service connection issue). The Veteran was previously (by March 1987 RO rating decision) denied service connection for residuals of a head injury. Evaluating the severity of the Veteran's service-connected PTSD pathology would benefit from clarification that distinguishes, to the extent possible, manifestations associated with the service-connected PTSD versus manifestations associated with pathologies for which service connection is not in effect. A new VA examination report contemplating the latest evidence of record will have the opportunity to address this matter and provide clarification. Finally, as noted above, the Veteran's contentions have clearly and expressly raised the matter of entitlement to a TDIU rating, including in testimony directly addressing the matter at his July 2012 Board hearing. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. at 453-54. The TDIU claim must be developed and adjudicated (for which the Veteran's co-operation is necessary). (Such matter is also inextricably intertwined with the appeal seeking a higher disability rating; hence, consideration of the matter must be deferred pending resolution of that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)). Accordingly, the case is REMANDED for the following action: (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. The RO should take appropriate steps to ensure that the Veteran has received all VCAA-mandated notice for each issue on appeal, including notice appropriate to the issue of entitlement to a TDIU rating, and afford him and his attorney the opportunity to respond. 2. The RO should secure for association with the claims file updated records of any VA treatment the Veteran has received for the disabilities on appeal (psychiatric disability and any other service-connected disability pertinent to his TDIU claim) from January 2011 to the present. 3. The RO should ask the Veteran to identify any and all providers of evaluation and/or treatment he has received for his service-connected psychiatric disability. The RO must ask the Veteran to provide releases for complete records of all providers identified. The RO must secure for association with the claims file the complete clinical records (to the extent such records are not already associated with the claims-file) from all sources identified. If any provider does not respond, the Veteran should be so advised, and reminded that ultimately it is his responsibility to ensure that the private records are received. 4. After the record is determined to be complete, the RO should arrange for a psychiatric evaluation of the Veteran to assess the current severity of his PTSD. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. The examination report should discuss any increase in severity of PTSD symptoms and new PTSD symptoms since the April 2011 VA examination. The examination report should include comment regarding the impact the PTSD has on occupational and everyday activity function. The examination report should distinguish, to the extent possible, the extent of disability (identifying symptoms/manifestations) associated with the service-connected PTSD diagnosis versus disability associated with the bipolar disorder, head injury, or any other pathology for which service-connection is not in effect. 5. The RO should provide the Veteran appropriate notice for a TDIU claim, and provide him the form for applying for such benefit. If he responds, the RO should fully develop and adjudicate the matter (as it is part and parcel of his increased rating for low back disability claim, but requires action on his part). He should be advised that such matter will only be further before the Board if he files a notice of disagreement with a denial of such claim, and then a substantive appeal after a SOC is issued. 6. The RO should then review the claims file (to specifically include an initial review of all evidence added to the record since the June 2011 SOC) and then re-adjudicate the claim for increase in the rating for PTSD (to include consideration of the possibility of any additional "staged ratings" in accordance with Hart v. Mansfield, 21 Vet App 505 (2007), as indicated). If the claim remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ George R. Senyk 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).