Citation Nr: 1323374 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-06 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a higher initial rating (evaluation) greater than 50 percent for Posttraumatic Stress Disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and August 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In the April 2009 rating decision, the RO granted service connection for PTSD and assigned a 50 percent initial rating. In the August 2009 rating decision on appeal, the RO denied a TDIU. The Veteran appealed from both the initial rating assigned for PTSD and the denial of TDIU, and these matters are now before the Board. A review of the Virtual VA paperless claims processing system reveals numerous documents, including records of VA treatment, which relate to and have been considered as part of the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Initial Rating for PTSD The Veteran is seeking an initial rating of greater than 50 percent for service-connected PTSD. During the pendency of the Veteran's appeal, he has had VA examinations in February 2009, July 2009, and May 2010. In addition, the Veteran sent VA a report of psychological assessment conducted in September 2010. The Board has reviewed the above reports of VA and private examination, and finds that, due to the nature of the reports, a new VA examination is necessary before the Board may properly adjudicate the Veteran's appeal. In particular, the Board notes that the VA examination conducted in May 2010 and the private assessment conducted in September 2010 are remarkably inconsistent. While both were conducted by a clinical psychologist, and include highly detailed reports of findings based on the Veteran's reported history combined with their clinical evaluations, the reports present very different disability pictures only four months apart. For example, the May 2010 VA examination opined that the Veteran had a substance abuse problem and personality disorder, not otherwise specified. The examiner indicated that the Veteran did not have PTSD, and that mental health symptoms were minimal. In contrast, the private assessment diagnosed PTSD, major depressive disorder, dysthymic disorder, generalized anxiety disorder, panic disorder with agoraphobia, and pain disorder associated in part with psychological factors in addition to cannabis and alcohol dependence. In addition, the VA examiner assigned a Global Assessment of Functioning (GAF) score of 75, indicating only transient symptoms with no more than slight impairment in social, occupational, or school functioning. A short time later, the private assessment assigned a GAF score of 25, a score consistent with delusions/hallucinations, or serious impairment in communication or judgment, or an almost total inability to function in the areas of social, occupational, or school. To help the Board to reconcile these findings against each other, further examination would be helpful. See 38 C.F.R. § 4.2 (stating the rating principle that it is the responsibility of rating specialists to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present). Additionally, another current VA examination would provide a clearer disability picture for the entire rating period, especially subsequent to the inconsistent disability picture at the time of the September 2010 private audiology examination, as well as the Veteran's history throughout the entire initial rating period on appeal. See 38 C.F.R. § 4.1 (it is essential that each disability should be viewed in relation to its history). The examiner should state the Veteran's current level of symptomatology, and indicate all mental health related diagnoses. The examiner should also, if possible, describe the level of symptomatology attributable exclusively to PTSD. TDIU The Veteran is seeking a TDIU. The central inquiry with a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran asserts that he is incapable of working in part due to the service-connected PTSD. The Veteran's appeal for a higher initial rating for PTSD is intertwined with the claim for TDIU; therefore, the issue of TDIU is not ripe for final appellate consideration at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). In addition to the procedural status of the Veteran's TDUI claim, the Board also finds that without additional substantive development the claim cannot be properly adjudicated. In particular, on VA examination, the examiner should identify whether the Veteran is capable of securing or following substantially gainful occupation, and if not, whether it is due to one or more service-connected disabilities. SSA Records On report of private assessment in September 2010, the Veteran indicated that he receives Social Security Disability benefits. The Board has reviewed the claims file and finds that records from the Social Security Administration (SSA) have not been obtained or requested. Normally VA has a duty to attempt to obtain SSA records when it has actual notice that a veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the Federal Circuit determined that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the argument that SSA records are always relevant and VA always is required to obtain them. Relevant records were defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim." Id. at 1321. The Federal Circuit also stated, "[n]ot all medical records for a veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In this case, it is unclear to what disabilities, if any, the Veteran's SSA payments relate. As they may be relevant, VA has a duty to attempt to acquire records from SSA. Accordingly, the case is REMANDED for the following action: 1. Contact the U.S. Social Security Administration and attempt to obtain records relating to Social Security Disability benefits provided to the Veteran. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA PTSD or mental disorders examination. On examination, the examiner should evaluate the Veteran's current level of impairment and symptomatology with regard to service-connected PTSD. The examiner should also identify all other mental health diagnoses, and opine as to the level of symptomatology and occupational and social impairment that is attributable only to the service-connected PTSD. On examination, the examiner also should offer an opinion as to whether the Veteran is capable of securing or following substantially gainful occupation, and if not, whether it is due to one or more service-connected disabilities. The service-connected disabilities are PTSD, tinnitus, scar of the right long finger, neuropathy of the right long finger, and bilateral hearing loss. 3. After completing all indicated development, readjudicate all claims on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. 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). _________________________________________________ J. PARKER 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).