Citation Nr: 1319825 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 08-24 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 28, 2012, and in excess of 70 percent thereafter. 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2010 and February 2012, the case was remanded for additional development. In February 2013, the Appeals Management Center (AMC) granted the Veteran an increased rating of 70 percent, effective from February 28, 2012. The case has now been returned to the Board for further appellate consideration. The Virtual VA electronic claims file has been reviewed; a review of the documents in such file reveals that it contains VA treatment records pertinent to the issues on appeal. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims that his PTSD warrants a disability rating higher than 50 percent prior to February 28, 2012 and higher than 70 percent, thereafter. Unfortunately, additional development of the record is needed before this issue can be adjudicated by the Board. Evidence now of record indicates that the Veteran has received disability benefits through both the Social Security Administration (SSA) and the state of New Jersey. The Veteran's SSA disability benefits were reportedly granted, at least in part, due to the Veteran's "nervous condition." Records associated with the Veteran's SSA or New Jersey disability claims therefore possibly contain information pertinent to the claims on appeal. While such records are not controlling for VA determinations, they may be pertinent to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (When VA is put on notice of the existence of SSA records relevant to the current claim, it must seek to obtain those records before proceeding with the appeal.). Thus, the RO/AMC should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. The RO/AMC should also contact the Veteran for authorization to obtain copies of any records associated with the Veteran's award of disability benefits from the state of New Jersey. The Veteran's representative has also raised the issue of entitlement to a TDIU due to service connected disorders, and primarily due to PTSD, in a March 2010 informal hearing presentation. Currently, service connection is in effect for PTSD (rated as 70 percent disabling), type II diabetes mellitus with erectile dysfunction (rated as 20 percent disabling), right ulnar nerve post traumatic neuritis (rated as 10 percent disabling), left knee mild degenerative joint disease (rated as 10 percent disabling), left and right upper extremity peripheral neuropathy (both separately rated as 10 percent disabling), left and right lower extremity peripheral neuropathy (both separately rated as 10 percent disabling), shell fragment wound residuals of the abdomen (rated as 0 percent disabling), shell fragment wound residuals of the right elbow (rated as 0 percent disabling), shell fragment wound residuals of the left knee (rated as 0 percent disabling), and shell fragment wound residuals of the right shoulder ((rated as 0 percent disabling), with a combined disability rating of 90 percent. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating. Id. at 453. While the this issue has yet to be certified for appeal, let alone initially addressed by the RO, in light of the binding precedent set forth in Rice, the Board is compelled to remand this issue. Finally, the record also indicates that the Veteran has been receiving regular psychiatric and medical treatment at the East Orange Campus of the VA New Jersey Health Care System. Currently, the claims file contains his VA psychiatric treatment records from August 2007 to December 2012 and his medical treatment records from August 2007 to December 2011. As there may be additional treatment records directly pertinent to the current issues, all outstanding VA treatment records since December 2011 should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); 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 the material could be determinative of the claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with appropriate notice under the Veterans Claims Assistance Act of 2000 of the information and evidence is necessary to substantiate a claim for a total disability rating based on individual unemployability (TDIU) and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that he is expected to furnish. 2. The RO/AMC should obtain from the East Orange Campus of the VA New Jersey Health Care System all outstanding, pertinent records of treatment of the Veteran from December 2011 to the present. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) and associate all records with the claims file. 3. The RO/AMC should contact SSA and request that agency to provide a copy of any decisions granting or denying the Veteran disability benefits as well as the medical records upon which the decision was based, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and responses received should be associated with the claims file, including any negative response from SSA. 4. The RO/AMC, after obtaining authorization from the Veteran, should obtain from the state of New Jersey copies of any records associated with the Veteran's award of disability benefits under state law or state-run programs and associate those records with the claims file. If the RO/AMC is unable to locate any disability benefit records, then a memorandum of the RO/AMC's efforts in attempting to obtain those records should be associated with the claims file. 5. The RO/AMC must 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). 6. Following the completion of the above, the RO/AMC should review the evidence and determine whether the claims may be granted, including a formal adjudication on the issue of entitlement to a TDIU due to service connected disorders. If the claims are denied, the RO/AMC must issue a statement or supplemental statement of the case (as appropriate) which includes all laws and regulations pertaining to a benefit based upon TDIU. The appellant and his representative must then be given an opportunity to respond. Thereafter, the case should be returned to the Board if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 D. LYON 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).