Citation Nr: 1311986 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-29 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 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 disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from March 1997 to March 2000, February 2003 to August 2003, and December 2003 to February 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board has reviewed all of the evidence of record, to include in the Veteran's paper claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. In this regard, the Board notes that the Virtual VA file does not contain any evidence or correspondence pertinent to the matter at hand that is not physically of record in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As an initial matter, additional VA treatment records relevant to the Veteran's claims were associated with the claims file subsequent to the issuance of the July 2009 statement of the case. Therefore, upon readjudication of the Veteran's claims, all evidence received since the July 2009 statement of the case should be considered. 38 C.F.R. § 19.31. The Board further finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the current nature and severity of his PTSD. In this regard, he was last afforded a VA compensation examination to assess the severity of his service-connected PTSD in December 2008, and his representative in January 2013 and February 2013 presentations has requested that the case be remanded to afford the Veteran another VA examination to assess the severity of the current disability due to PTSD. Moreover, the record contains a VA psychiatric assessment in May 2010 suggesting an increased psychiatric symptomatology since the December 2008 VA psychiatric examination, to include a lower Global Assessment of Functioning (GAF) score recorded in May 2010 than was demonstrated in December 2008. Therefore, as it has been over four years since the Veteran's PTSD was last examined by VA and the evidence suggests that his PTSD symptomatology may have increased in severity since the December 2008 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of his service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). As the resolution of the claim for a higher initial rating for PTSD could impact the adjudication of the claim for TDIU, the adjudication of the TDIU claim must be deferred at the present time. Harris v Derwinski, 1 Vet. App. 80 (1991). That fact notwithstanding, the Board finds that additional development relevant to such claim is necessary to decide the appeal. In this regard, the record reflects that only the first page of the Veteran's VA Form 21-8940 (Veteran's Application For Increased Compensation Based On Unemployability) was received in May 2008. Therefore, he should again be requested to fill out such form. The Board further finds that a remand is necessary in order to obtain an opinion regarding whether the Veteran's service-connected disabilities, i.e., PTSD, hypertension, tinnitus, and pseudofolliculitis barbae, either singularly or jointly, render him unemployable. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Board also notes that the Veteran receives treatment for his service-connected disabilities, to include PTSD, through the Detroit, Michigan, VA Medical Center. The most recent treatment records contained in the claims file are dated in June 2011. Therefore, while on remand, any treatment records from the Detroit VA facility dated from June 2011 to the present should be obtained for consideration in the Veteran's appeal. Finally, the Board finds that a remand is necessary in order to obtain outstanding records from the Social Security Administration (SSA). In this regard, the record reflects that he reported in a May 2010 VA treatment record that he was unemployed and his only income was his disability check and social security. As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (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). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Obtain all VA treatment records from the Detroit VA Medical Center system dated from June 2011 to the present pertaining to all of the Veteran's service-connected disabilities, to include his PTSD. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD. The examiner should also specifically address the impact such disability has on the Veteran's employability. All opinions expressed should be accompanied by supporting rationale. 5. After completing the above, the Veteran's claims file should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, i.e., PTSD, hypertension, tinnitus, and pseudofolliculitis barbae, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. All opinions expressed should be accompanied by supporting rationale. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims for an increased initial rating for PTSD and TDIU should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the July 2009 statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ A. JAEGER 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).