Citation Nr: 1326241 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-03 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder. 2. Entitlement to basic eligibility for Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from July 1990 to February 1992 and from February 2003 to October 2003. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from decisions issued by the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia (RO). The issue of an increased rating for posttraumatic stress disorder (PTSD) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT With the grant of a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU), effective from October 20, 2008, the Veteran meets the schedular requirements for basic eligibility for Dependents' Educational Assistance (DEA) benefits as he has permanent and total service-connected disability. CONCLUSION OF LAW Basic eligibility to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35 is established. 38 U.S.C.A. §§ 3500, 3501 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.807 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Educational assistance is available to a child or surviving spouse of a Veteran. In the case of a Veteran who is alive, the conditions for basic eligibility for DEA benefits include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran's having a permanent total service- connected disability. 38 U.S.C.A. §§ 3500, 3501(a)(1), 3512; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C.A. § 3501(a)(8). The Veteran's DD 214 shows that he was discharged from the United States Army under honorable conditions in February 1992 and in October 2003. The claims file reflects that in the April 2009 rating decision, the RO granted TDIU benefits effective from October 20, 2008. In so doing, the RO noted that the Veteran received a disability retirement due to the severity of his service-connected PTSD. Thus, the Veteran's service-connected disability is considered to be totally disabling and this level of disability is reasonably certain to continue throughout his lifetime. As such, basic eligibility for Chapter 35 DEA benefits is warranted. Accordingly, the appeal of this issue is granted. ORDER Basic eligibility to DEA benefits under the provisions of Chapter 35, Title 38, United States Code is granted. REMAND A remand is required with respect to the Veteran's remaining claim. Review of the record indicates that a remand is required to obtain the Veteran's outstanding treatment records relevant to his claim for an increased rating for PTSD. Currently, the claims file includes the Veteran's VA treatment records dated through June 2009. In support of his claim, the Veteran submitted letters from Dr. A.R.D., Jr., dated in April 2007 and May 2008, and a September 2011 letter from V.T., P-MHNP, BC, who both indicated that they had treated the Veteran for his psychiatric disability. However, no attempts have been made to obtain the records from these private clinicians. Additionally, it is unclear whether there are any outstanding VA treatment records relevant to the Veteran's claim. These records may prove beneficial in adjudicating the Veteran's claim for an increased rating. Thus, on remand, the RO/AMC shall obtain all outstanding VA and private medical records relevant to the Veteran's claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding 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 VA, even where they are not actually before the adjudicating body). Moreover, the Board finds that the record is absent a contemporaneous assessment of the severity of the Veteran's PTSD. In this regard, the disability was most recently assessed during a December 2008 VA examination. However, this examination is over four years old and does not take into account any relevant evidence that may be contained within the potentially outstanding medical records. Given this, the Board also finds that after associating any private and VA treatment records with the claims folder, the Veteran must be afforded a contemporaneous VA examination to assess the current severity of his service-connected PTSD. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (providing that an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following actions: 1. The RO or the AMC must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include any VA or non-VA treatment records. Based on his response, the RO/AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain all relevant medical records from Dr. A.R.D., Jr. and V.T., P-MHNP, BC, and all relevant VA treatment records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO/AMC 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/AMC with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After completion of the above, the RO/AMC must provide the Veteran with a VA psychiatric examination to determine the severity of his PTSD. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. The examiner must provide accurate and fully descriptive assessment of all psychiatric symptoms. The examiner must comment upon the presence or absence, and the frequency or severity of the following symptoms due to PTSD: flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory, such retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation or mood; suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The examiner must enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The report must be typed. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for the VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any additional development deemed necessary, the RO/AMC must readjudicate the Veteran's claim on appeal. If the benefits on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs