Citation Nr: 1322360 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 07-35 523 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Allen Gumpenberger, Attorney-Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2009 rating decision in which the RO granted service connection and assigned an initial 50 percent rating for PTSD, effective June 13, 2005. In December 2009, the Veteran filed a notice of disagreement with the assigned rating. A statement of the case (SOC) was issued in June 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in December 2010. In June 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In January 2012, the Board, inter alia, denied the claim for an initial rating in excess of 50 percent for PTSD. The Veteran appealed the January 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court granted the Joint Motion for Partial Remand filed by representatives for both parties, vacating the Board's decision, and remanding the higher rating claim to the Board for further proceedings consistent with the Joint Motion. For the reasons expressed below, the matter on appeal is being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND In light of points raised in the parties' Joint Motion for Partial Remand, and review of the claims file, the Board finds that further RO action in this appeal is warranted. The Court has held that claims are inextricably intertwined when they "are so closely connected that it is necessary that they be adjudicated together" or where a decision on one claim could have a "significant impact" on another claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In the Joint Motion for Partial Remand, it was noted that additional development and fact finding was necessary regarding whether or not the Veteran has an alcohol-related disability that was caused or is aggravated by his PTSD. The parties noted that, in the January 2012 decision, the Board acknowledged evidence suggesting a relationship between the Veteran's alcoholism, now in remission, and the service-connected PTSD. Accordingly, in the Joint Motion, the parties indicated that there remains a question as to whether the Veteran's abuse of alcohol is secondary to the service-connected PTSD. The parties also noted that, based upon the Board's findings in the January 2012 decision, the Veteran's claim for service connection for polyneuropathy was remanded, reasoning that if the Veteran's alcohol abuse was both secondary to the PTSD and the primary cause of the polyneuropathy, then a VA examination was necessary to obtain an opinion as to whether the Veteran's PTSD caused or aggravated the polyneuropathy. It was noted that the Veteran's total disability rating based on individual unemployability due to service-connected disability(ies) (TDIU) claim was remanded as it was inextricably intertwined with the polyneuropathy claim. In the Joint Motion, the parties indicated that the Board failed to address the potential impact on the Veteran's PTSD rating of a future finding that PTSD caused or aggravated an alcohol-related disability. It was noted that, should the RO make such a finding, it could establish service connection for an alcohol-related disability resulting from the PTSD, or the RO could also consider the alcohol abuse to be a symptom of the PTSD which could significantly impact the RO's or Board's findings as to the appropriate initial rating of the PTSD. Accordingly, the parties indicated that the claim for higher initial rating for PTSD was potentially inextricably intertwined with the claims for service connection for polyneuropathy and TDIU claims; and that the claim should be remanded for readjudication following resolution of the matter of whether the Veteran has an alcohol-related disability that was caused or is aggravated by his PTSD. In view of the above, and the prior remand, the Board must remand this matter to the RO for readjudication consistent with the directives of the Joint Motion. The Board also finds that, prior to such readjudication, further development of the claim currently before the Board is warranted. . The Board notes that all pertinent evidence has not been associated with the claims file. In May 2013 correspondence, the Veteran's attorney indicated that the Veteran had recently undergone additional VA examinations and mental health treatment at the Connecticut VA and that a remand is requested to associate the records and allow the RO the opportunity to adjudicate the appeal accordingly. A review of the Veteran's claims file currently includes, with the exception of October 2012 VA examination reports, outpatient treatment records from the West Haven VA Medical Center (VAMC) dated through June 2011. There are no additional treatment records in the Veteran's paperless, electronic claims processing system (Virtual VA). Furthermore, there is no indication that the RO has reviewed the October 2012 VA examination reports, as there is no supplemental SOC associated with the claims file, or uploaded to Virtual VA. The Board emphasizes that 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 during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, or remand, the RO should obtain from the West Haven VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran since June 2011. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to sure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the West Haven VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since June 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the current claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, 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). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for higher rating for PTSD following adjudication of the previously remanded claims, in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).