Citation Nr: 1325604 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-10 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to May 20, 2011. REPRESENTATION Appellant represented by: Chisholm, Chisholm & Kilpatrick WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from February 2006 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Baltimore, Maryland and Seattle, Washington. In July 2012, the Board issued a decision granting a 30 percent evaluation prior to May 20, 2011 and granting a total disability evaluation for PTSD beginning May 20, 2011. In this same decision, the Board remanded the issue of an initial disability rating in excess of 30 percent for headaches and entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), prior to May 20, 2011. The Veteran appealed the issue of a disability rating in excess of 30 percent for PTSD prior to May 20, 2011 to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court remanded the Veteran's claim adopting a Joint Motion for Remand. The case is now before the Board. It is noted that the Board's July 2012 decision also remanded an initial evaluation in excess of 30 percent for headaches and entitlement to a total disability rating based on individual unemployability to the RO for development. The RO is reminded that the remand remains pending. In this regard, it is noted that the Veteran's attorney has submitted documentation pertaining to the TDIU claim asserting that his service-connected disabilities render the Veteran unemployable. See the April 2012 employability evaluation; and March 2013 Veteran's Application for increased compensation based on unemployability. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran and his attorney submitted several documents in May 2013. The documents included a letter from the Veteran's attorney dated in May 2013, a VA Form 21-22, a Joint Motion for Partial Remand (dated in October 2011) for a previous Court remand, the Veteran's March 2013 Application for Increased Compensation Based on Unemployability, and an April 2013 Employability Evaluation. The attorney's May 2013 letter and March 2013 Application for Increased Compensation Based on Unemployability are considered new evidence. The other documents were previously submitted by the Veteran's attorney or already associated with the claims file. As the new evidence is relevant to the issue of an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to May 20, 2011, and the Veteran and his attorney have not waived agency of original jurisdiction consideration of the new evidence, this matter must be remanded for additional development. 38 C.F.R. § 20.1304(c) (2012). In the May 2013 letter, the Veteran's attorney requested assistance in obtaining Social Security Earnings statements from 2004 to present under 38 U.S.C. § 5103A. There is no report of the SSA decision in this case, and the Board therefore has no basis for preliminarily ascertaining that the disabilities for which SSA benefits were granted differ from those addressed in this appeal. But see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (finding that the duty to assist did not include obtaining SSA records where VA had a copy of the decision, and there was no evidence that the decision addressed the disability at issue in the appeal). Efforts to obtain the SSA records are therefore required, pursuant to 38 C.F.R. § 3.159(c)(2). See also Baker v. West, 11 Vet. App. 163, 139 (1998) (VA's duty to assist includes obtaining SSA records when the veteran reports receiving SSA). It appears that the Veteran has reported in the past that these records are not relevant. Despite this, the Board will give the benefit of the doubt to the Veteran and his attorney that documents from the Social Security Administration (SSA) are indeed relevant and request that these documents be obtained on remand. As the Veteran has received treatment at the VA in the past, there may be outstanding treatment records that are relevant to the Veteran's claim. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should obtain all VA records prior to May 20, 2011. The Veteran's attorney argued in the May 2013 letter that the issue of TDIU previously remanded by the Board in July 2012 is part and parcel with the issue of a higher evaluation for PTSD. The JMR also discusses issues involving the Veteran losing his job due to his PTSD symptoms. As any development or additional treatment records added to the claims file regarding the Veteran's total disability rating based on individual unemployability (TDIU) claim may impact a higher evaluation for the Veteran's PTSD, the Board finds that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, both issues should be adjudicated at the same time when the case is remanded to the RO. Accordingly, the case is REMANDED for the following action: 1. Review all newly obtained documents received from the Veteran and his attorney. 2. Obtain VA medical records not already associated with the claims file for the period prior to May 20, 2011. 3. Ask the Veteran to submit any relevant private treatment records pertaining to his PTSD prior to May 20, 2011 or an authorization form that would allow VA to request the records on his behalf. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Contact the SSA and request all Social Security Disability records be obtained, including earning statements prior to May 20, 2011. 5. After ensuring that the above development has been properly completed, undertake any additional development action deemed warranted and then adjudicate the Veteran's claim for entitlement to higher evaluations for PTSD prior to May 20, 2011. If the benefit sought on appeal is denied, the RO should provide the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. IT IS NOTED THAT THIS ISSUE IS INEXTRICABLY INTERTWINED WITH THE TDIU ISSUE THAT WAS REMANDED BY THE BOARD IN JULY 2012. Thereafter, the claims folder should be returned to the Board for further appellate review if otherwise in order. 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). _________________________________________________ MICHAEL A. PAPPAS 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).