Citation Nr: 1319909 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 11-04 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a compensable evaluation for attention deficit-hyperactivity disorder - primarily hyperactive type. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In November 2011, the Veteran testified during a video conference hearing before the Board. In February 2013, the Veteran was informed that the Veterans Law Judge who conducted the hearing in November 2011 was no longer with the Board. Since the regulations provide that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal, the Veteran was asked if he wished to have another hearing before the Board. 38 C.F.R. § 20.707 (2012). The letter notified the Veteran that he had 30 days within which to request an additional hearing. As the Veteran did not respond to the letter, the Board will proceed with the adjudication of the Veteran's claims. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND At the November 2011 video conference hearing, the Veteran testified that he was currently receiving treatment at the VA Outpatient Clinic in New London, Connecticut. A review of the record reflects VA treatment records dated through April 2011. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators, regardless of whether those records are physically in the claims file. See Bell v Derwinski, 2 Vet. App. 611, 613 (1992). As it does not appear that all VA treatment records for the Veteran have been associated with the record and made available for review, a remand is necessary to obtain any outstanding VA treatment records. In May 2010, the Veteran underwent VA examination in connection with his claim for a compensable evaluation for attention deficit-hyperactivity disorder - primarily hyperactive type. The VA examiner noted that the Veteran's claims file was reviewed but that no medical records were available for review. However, the Veteran reported that he had received mental health treatment during the five years prior to the VA examination. Specifically, he stated that he was evaluated and possibly admitted briefly as an inpatient at William W. Backus Hospital in Norwich, Connecticut for a "mental breakdown" approximately three years prior to the VA examination. The Veteran also stated that he had been treated by a nurse practitioner, Alice Harding, for approximately two years and that she had prescribed medication for his mental health disability. At the November 2011 video conference hearing, the Veteran and his wife testified that he had seen a private physician for his service-connected disability prior to receiving VA treatment. VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). As the evidence does not appear to include these records, on remand the RO must attempt to obtain and associate all outstanding private treatment records with the claims file. In addition, the evidence of record indicates the Veteran has previously applied for disability benefits from the Social Security Administration (SSA). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the United States Court of Appeals for Veterans Claims (Court) found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). Moreover, the Court has determined that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here, and the RO should request the Veteran's SSA records. See Golz, 590 F.3d at 1321. The Board also notes that at the November 2011 video conference hearing, the Veteran testified that his symptoms were about the same in severity since the May 2010 VA examination. However, if the above development uncovers any new treatment records, medical opinions, or lay statements indicating the Veteran's symptoms have increased in severity since the May 2010 VA examination, the Board finds the RO should schedule the Veteran for an additional VA examination to determine the current severity of his service-connected attention deficit-hyperactivity disorder - primarily hyperactive type. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). Finally, the Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In November 2011, the Veteran testified that he had been unemployed since 2009 due to symptoms related to his service-connected disability. Therefore, the issue of entitlement to a TDIU has been reasonably raised by the evidence of record and should be adjudicated as part of the claim on appeal. Id.; see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). As the issue of entitlement to a TDIU has not been properly developed for appellate review, the issue is remanded for appropriate action. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record any additional VA treatment records from the VA Outpatient Clinic in New London, Connecticut, to specifically include records dated since April 2011, not already of record. All actions to obtain the requested records should be documented fully in the claims file. If any cannot be located or no such records exist, a memorandum of unavailability should be associated with the claims file, and the Veteran and his representative should be provided a copy of the memorandum. 2. Obtain, with authorization from the Veteran, and assistance as needed, any outstanding treatment records from the William W. Backus Hospital in Norwich, Connecticut, and the nurse practitioner, Alice Harding, as well as any other identified private treatment records. To the extent that an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made, and the Veteran and his representative must be informed of the negative results and be given the opportunity to secure the records. 3. Contact the Social Security Administration and request a copy of any decision made pursuant to a claim of the Veteran for disability benefits, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's claims file. Efforts to obtain these and any other Federal records must continue until the RO determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) (2012) must be provided to the Veteran and his representative, and he must then be afforded an opportunity to respond. 4. After undertaking the above development, if that development uncovers any new treatment records, medical opinions, or lay statements indicating the Veteran's symptoms have increased in severity since the May 2010 VA examination, obtain an additional VA examination to determine the current severity of the Veteran's service-connected attention deficit-hyperactivity disorder - primarily hyperactive type. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history of symptomatology from the Veteran, the pertinent details of which should be included in the examination report. Following examination of the Veteran and review of the claims file, the examiner should identify all currently present manifestations of the service-connected attention deficit-hyperactivity disorder - primarily hyperactive type. 5. Schedule the Veteran for a VA examination to determine whether it is at least as likely as not that the Veteran's service-connected disabilities, considered in combination preclude substantially gainful employment consistent with his education and occupational experience. The claims folder must be made available to the examiner for review in conjunction with the examination. All indicated tests must be performed. Rationale must be provided for the opinion offered. 6. Thereafter, re-adjudicate the Veteran's claim of entitlement to a compensable evaluation for attention deficit-hyperactivity disorder - primarily hyperactive type, and adjudicate the claim of entitlement to a TDIU. If any benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. 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). 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). _________________________________________________ U. R. POWELL 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).