Citation Nr: 1322142 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-15 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied the Veteran's TDIU claim. The RO in Montgomery, Alabama, currently has jurisdiction over the Veteran's VA claims folder. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2013. A transcript of this hearing has been associated with the Veteran's VA claims folder. In addition, the record reflects the Veteran submitted additional medical records directly to the Board, and that he waived initial agency of original jurisdiction (AOJ) consideration of such evidence at this hearing in accord with 38 C.F.R. § 20.1304 (2012). See Transcript p. 2. For the reasons detailed below, the Board finds that further development is required in this case. Accordingly, 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 The Veteran is service-connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling; bilateral hearing loss, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and type 2 diabetes mellitus, evaluated as 10 percent disabling. His overall combined rating is 80 percent. See 38 C.F.R. § 4.25. As such, he satisfies the schedular criteria for consideration of a TDIU. See 38 C.F.R. §§ 3.340, 4.16(a). The record reflects that the Veteran last worked in January 2009, when he retired after more than 40 years with the U.S. Postal Service. His last position was that of a supervisor. He testified at his May 2013 hearing that his education level was to the 9th grade. Transcript p. 9. However, on several VA Forms 21-8940 (Application for Increased Compensation Based on Employability) he indicated that he completed 2 years of college. He also indicated at his hearing that it was a combination of his PTSD and difficulty communicating/hearing due to his hearing loss and tinnitus which render him unemployable. The record reflects the Veteran was accorded multiple VA medical examinations regarding this case, with the most recent being in February 2012. However, at his May 2013 hearing, he testified that his hearing loss had increased in severity since the most recent examination. See Transcript p. 4. He also indicated that he now experienced auditory hallucinations. Id. at pp. 4-6. The additional treatment records submitted by the Veteran directly to the Board also note such complaints. It is not clear from the record whether such auditory hallucinations are due to the service-connected hearing loss or the service-connected PTSD. In any event, no such symptoms were noted on either the VA auditory examination or the VA PTSD examination conducted in February 2012. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board further notes that the prior examinations were criticized at the May 2013 hearing for separately evaluating the individual service-connected disabilities, and not providing a general examination/opinion regarding the cumulative effect of the service-connected disabilities on the Veteran's employability particularly as he indicated he was unemployable due to a combination of his service-connected PTSD and hearing loss. See Transcript pp. 14-15. Consequently, the Board concludes that a new VA examination is needed in order to make an informed decision regarding the Veteran's current level of functional impairment and adequately evaluate his current level of disability due to the cumulative effect of his service-connected disabilities, to include upon his ability to obtain and/or maintain substantially gainful employment. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further notes that the record reflects that no VA treatment records were obtained and/or considered below that were dated subsequent to April 2009. However, the Veteran indicated at his May 2013 hearing that he received regular treatment for his service-connected disabilities through the VA medical facility in Mobile, and submitted such treatment records dated in 2013. This suggests that there may be other outstanding VA treatment records that are not on file. The Court has held that VA records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Relevant statutory and regulatory provisions also emphasize the importance of obtaining pertinent VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). Consequently, the Board concludes that a remand is also required in order to obtain any such records. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his service-connected PTSD, hearing loss, tinnitus, and diabetes mellitus since April 2009. After securing any necessary release, the AMC/RO should obtain those records not on file. Even if the Veteran does not respond to this request, the AMC/RO should obtain any outstanding VA treatment records from this period, to include from the VA medical facility in Mobile, Alabama. 2. The AMC/RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of the symptoms of his service-connected PTSD, hearing loss, tinnitus, and diabetes mellitus; as well as the impact of the service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current severity of his service-connected disabilities, (PTSD, hearing loss, tinnitus, diabetes) including whether the Veteran experiences auditory hallucinations, and, if so, whether such hallucinations are due to the service-connected hearing loss and/or PTSD. The evaluation also should contemplate whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. The claims folder should be made available to the examiner for review before the examination; the examiner should indicate that the claims folder was reviewed. Following evaluation of the Veteran, an appropriate evaluator should indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities as a whole (including PTSD, hearing loss, tinnitus, and diabetes mellitus) render him unable to secure or follow a substantially gainful occupation. In formulating this opinion, and if indicated, the evaluator should also suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. A clear rationale for all opinions should be provided with a discussion of the facts and medical principles involved. However, if the requested opinion cannot be provided without resort to speculation, that should be so stated and it explained why an opinion cannot be provided without resort to speculation. 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in April 2012, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter 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 E. KILCOYNE 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).