Citation Nr: 1325410 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-02 393 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to a disability rating for post-traumatic stress disorder (PTSD) in excess of 30 percent. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) from an RO decision of March 2009. Although the Veteran had initially requested the opportunity to present sworn testimony during a hearing before a Veterans Law Judge, he withdrew this request in a signed June 2011 statement. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action on his part is required. REMAND The Veteran was scheduled for a VA examination for purposes of compensation in January 2011. He failed to report for the examination. He has submitted no excuse and has not attempted to show good cause for his failure to report. Significantly, he also has not alleged he did not receive notice of the scheduled examination. See Kyhn v. Shinseki, 716 F3d. 372 (Fed. Cir. 2013). However, in May 2011, he submitted a copy of a February 2011 clinical psychological disability evaluation report, which was apparently conducted to support the Veteran's application for Social Security disability benefits. This report contains much of the information that a VA examination report would; however, it does not have exactly the same focus. The Social Security adjudicators are interested in the Veteran's overall impairment, whereas VA is interested in impairment arising from the Veteran's PTSD in particular. Generally, when a claimant fails without good cause to report for an examination scheduled in conjunction with a claim for an increase, such as this claim, adjudicators are instructed to deny the claim for failure to report for the examination. 38 C.F.R. § 3.655. However, the Veteran in this case has continued to pursue his appeal, by submitting the February 2011 report, along with a waiver of RO review. Furthermore, the evidence raises several points which require further explanation in the view of the Board. Thus, in our view, another opportunity for the Veteran to attend a VA examination is warranted. In this regard, the Veteran is informed that the results of this newly-requested examination are deemed necessary for a fully-informed decision on his claim and that if he again fails to report without a showing of good cause, his claim will be denied on this basis, without reaching the merits of his appeal. Additionally, the Veteran has now submitted evidence that he believes he is unemployable due to disability, in that he has claimed Social Security disability benefits. In Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. However, a review of the claims file does not show that this issue has been adjudicated by the RO. As such, the issue of TDIU has been characterized as an issue on appeal as styled on the title page of this remand. The VA has a duty to consider the same evidence considered by the Social Security Administration (SSA) in making any decision regarding entitlement to VA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Because it is clear from the report submitted by the Veteran that he is claiming his PTSD, at least in part, renders him unemployable before the SSA, the Board finds there is a reasonable possibility these records are relevant to the Veteran's remaining VA claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Therefore, the Veteran's Socials Security records should be obtained prior to further review of his VA appeal. As the case is being remanded, his VA medical records should be updated for the file. VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). If the Veteran has received private medical care for PTSD subsequent to 2009, he is informed that he should either submit records reflecting such care or he should contact the VA so that VA can assist him in obtaining these records for review by adjudicators. He is also informed that actual treatment records are more helpful to adjudicators in understanding his impairment, than summary statements from his care providers. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall attempt to obtain from SSA the records pertinent to the Veteran's claim for Security disability benefits, to include agency determination on benefits and all supporting documentation, such as medical records relied upon concerning that claim. 2. The RO should obtain all records of VA medical treatment afforded to the Veteran subsequent to 2008 at the VA Medical Center in Philadelphia, and all related VA facilities, for inclusion in the file. 3. The veteran should be afforded a VA psychological examination to identify all current impairment related to PTSD. The claims folder, including all records received pursuant to the above requests, must be made available to the examiner for review before the examination. All tests or studies deemed helpful by the examiner should be conducted in conjunction with the examination. In addition to identifying and describing all current impairment related to PTSD, the examiner is requested to describe the relationship, if any, between the Veteran's PTSD and what is described in his medical records as a potential alcohol problem. If any alcohol-related dysfunction is dependent upon or proximately-caused by his PTSD, this should be explained. The effect of any alcohol-related impairment upon the Veteran's Global Assessment of Functioning Score should be explained, as well as the basis for the Score assigned. The examiner is also requested to render an opinion as to the effect of the Veteran's PTSD upon his employability. 4. After the development requested above has been completed, the RO should again review the record. If either benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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. 2011). _________________________________________________ JONATHAN B. KRAMER 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).