Citation Nr: 1320419 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 12-13 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol abuse in full remission, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Newark, New Jersey. In August 2012, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. For reasons expressed in more detail, below, the Board has characterized the appeal as encompassing a claim for a TDIU, due to the service-connected disability for which a higher rating is sought. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After having carefully considered the case, and for the following reasons, the Board believes that the claim on appeal must be remanded for further development of the record. Initially, the Board notes that there are outstanding VA records pertinent to the October 2009 claim for increase. Specifically, the Veteran testified that he receives his psychiatric medications through the East Orange VA Medical Center (VAMC) and Tinton Falls Community Based Outpatient Clinic (CBOC) with visits approximately every six months. Hearing Transcript, pp. 3-4. Review of the claims file reveals records from these facilities dated through March 2012. Thus, it appears that more recent records exist and should be requested. See 38 U.S.C.A. § 5103A(b)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992). It further appears there are private medical records to obtain. At the hearing, the Veteran testified that he has received treatment from his private treating psychologist, Dr. E., every two weeks for the last five years. Hearing Transcript, pp. 4-5. While the record contains brief summation reports from Dr. E., dated in September 2012, July 2010, April and July 2009, and October 2007, the underlying treatment records of Dr. E. have not been obtained. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." VA must attempt to obtain these records. Additionally, a remand is required in order to afford the Veteran a VA examination to determine the current severity of his PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that, when a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Here, the Veteran was last examined by VA for his PTSD in October 2009. The medical record since then indicates that his symptoms may have worsened. For example, the record depicts a decline in the Veteran's Global Assessment of Functioning (GAF) scores since the time of the October 2009 VA examination. Additionally, at the August 2012 hearing, the Veteran testified that he was let go from his job in July 2010, due at least partly to his PTSD symptoms. Hearing Transcript, pp. 5-9. This is corroborated by the September 2012 report of Dr. E., who found the Veteran is "functionally unemployable" due to his psychological condition. Finally, it appears the Veteran has been prescribed additional medication for his symptoms. A November 2011 VA prescription report indicates he has been prescribed Venlafaxine HCL for depression. This medication was not noted in the October 2009 VA examination report. For all of these reasons, an updated examination is needed to assess the current severity of the Veteran's symptoms. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As noted above, in this case, the Veteran contends he is unemployable due to his service-connected psychiatric disability. His treating psychologist, Dr. E., submitted a statement to this effect in his September 2012 report. As such, the Board finds that a claim of entitlement to a TDIU has been raised in conjunction with his claim for entitlement to an increased evaluation for his PTSD. As the percentage requirements for a TDIU under the provisions of 4.16(a) may not be met at the time of adjudication, the RO should consider the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) as necessary. Additionally, to ensure that the record before VA is complete, the aforementioned mental health examination should include a request for medical opinion which, taking into account the Veteran's education, experience, and occupational background, determines whether unemployability due to PTSD is demonstrated. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must provide the Veteran with a letter satisfying the duty to notify provisions with respect to his implied claim of entitlement to TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). 2. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran's PTSD from the East Orange VAMC, to include the Tinton Falls CBOC, dated since March 2012. All records/responses received should be associated with the claims file. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and compliance must be achieved with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012). 3. Contact the Veteran and request that he provide authorization forms necessary to allow VA to obtain the private treatment records of his private psychologist, Dr. E. Thereafter, the RO/AMC should attempt to obtain those records. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and compliance must be achieved with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012). 4. Following receipt of any outstanding records, schedule the Veteran for a VA psychiatric examination to ascertain the current severity of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Access to Virtual VA must be made available to the examiner for review, if needed. In accordance with the applicable worksheets for rating psychiatric disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of his PTSD with major depressive disorder and alcohol abuse in full remission. The examination report should include a complete discussion of the Veteran's subjective complaints, findings on mental status examination, and a multi-axial diagnosis with Global Assessment of Functioning (GAF) score. The examiner should assign a GAF score which reflects the severity of the Veteran's service-connected disability. The examiner should also discuss the extent to which the Veteran's PTSD with major depressive disorder and alcohol abuse in full remission affects his daily life and employment. In addition to the foregoing, the examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Then, following a review of the case, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected PTSD with major depressive disorder and alcohol abuse in full remission precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 5. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After the examinations are completed, the RO/AMC should review the examination reports to ensure they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. After completing all indicated development, the RO/AMC then should readjudicate the appeal in light of all the evidence on file. As the percentage requirements for a TDIU under the provisions of 4.16(a) may not be met at the time of adjudication, the RO/AMC should consider the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) as necessary. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. The appellant 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). _________________________________________________ STEPHANIE L. CAUCUTT Acting 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).