Citation Nr: 1309898 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-14 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board observes that the Veteran previously appointed The American Legion as his representative. However, in a September 2012 statement, the Veteran revoked The American Legion as his representative and indicated that he would be representing himself. Accordingly, the Board concludes that the Veteran is proceeding with his appeal pro se. 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 Regrettably, a remand is necessary for further evidentiary development. An October 2008 letter from the Vet Center in Raleigh, North Carolina indicates that the Veteran presented for services in February 2007 and participated in several groups including symptom management, anger management, narrative therapy and an advanced process group. None of these records have been obtained. Therefore, a remand is necessary so that they can be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). 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 pertinent). Additionally, the Veteran has reported receiving disability benefits from the Social Security Administration (SSA). The RO requested the Veteran's SSA records in January 2010. However, it does not appear that any response from the SSA was received or that the RO made any follow up requests. Although the Veteran has not specifically reported that he receives SSA benefits based on his psychiatric disorder, the Board cannot conclude that such records are not relevant. Thus, the Board finds that it is incumbent on VA to obtain the SSA records prior to a final adjudication of the Veteran's appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 369-370 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Also, the most recent treatment records from the VA Medical Center (VAMC) in Durham, North Carolina are dated in July 2009. Accordingly, on remand, records of any ongoing VA psychiatric treatment that the Veteran may be receiving should be obtained. Additionally, the most recent treatment records from the Veteran's private psychiatrist, H.J., M.D. are dated in January 2010. On remand, any further records from Dr. H.J. should also be obtained. Furthermore, the Board observes that the Veteran's only VA examination for this disability was in April 2008, almost five years ago. As a remand is necessary to obtain additional treatment records, the Veteran should be afforded a new VA examination to ascertain the current level of this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). As for the TDIU claim, in an application for TDIU dated in May 2006, the Veteran reported that he had not tried to find work because of "bad nerves." Clearly, based on this evidentiary posture, a claim for a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Indeed, the RO has already noted that the Veteran has a pending claim for a TDIU. In a November 2010 deferred rating decision, the RO concluded that the issue of entitlement to a TDIU was intertwined with a pending service connection claim for hypertension and that it should be addressed by the Rating Board. The RO denied service connection for hypertension in a January 2011 rating decision, which the Veteran has not appealed. However, it does not seem that the RO has yet adjudicated the TDIU claim. In this regard, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice at 453-454. As such, the Board concludes that it has jurisdiction of the Veteran's TDIU claim. Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary. Specifically, the VA examination for the Veteran's PTSD should include an opinion regarding the effect of that disability on his employability. The Board points out that, in addition to the service-connected PTSD, currently rated as 30 percent disabling, service connection is also in effect for prostate cancer with incontinence and erectile dysfunction, evaluated as 40 disabling prior to July 13, 2005, as 100 percent disabling from July 13, 2005, to January 1, 2010, as 20 percent disabling from January 1, 2010, to January 4, 2010, and as 40 percent disabling from January 4, 2010; and hemorrhoids, evaluated as noncompensably disabling. In a January 2010 application for TDIU, the Veteran asserted that his prostate cancer affected his employability. On remand, an opinion regarding the effect of his prostate cancer on his employability should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder the SSA records pertaining to the Veteran's claim for benefits, to include copies of the decision as well as the medical records used in support of that determination. All attempts to obtain these records should be documented in the claims folder. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are Federal records, if they cannot be located or no such records exist, the Veteran should be notified in writing. 2. After obtaining the appropriate release of information forms where necessary, procure records of post-service psychiatric treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Raleigh Vet Center, the Durham VAMC and from Dr. H.J. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 3. Then, accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected PTSD. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. All pertinent psychiatric symptoms found should be noted in the examination report. The examiner should comment on the extent to which the Veteran's PTSD impairs his occupational and social functioning. In so doing, the examiner should assign a Global Assessment of Functioning (GAF) score and provide an explanation of the score assigned. The examiner should also opine as to whether the Veteran's service-connected PTSD precludes him from engaging in substantially gainful employment. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Also, obtain an addendum opinion from the May 2010 genitourinary examiner regarding the effect of the Veteran's prostate cancer on his employability (or, if they are unavailable, a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. A notation to the effect that this review has taken place should be made in the evaluation report. After reviewing the evidence, the examiner should opine as to whether the Veteran's service-connected prostate cancer with incontinence and erectile dysfunction precludes him from engaging in substantially gainful employment. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 5. Ensure that the examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 6. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MICHAEL MARTIN 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).