Citation Nr: 1326476 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-22 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. As the Veteran is challenging the rating assigned for his service-connected PTSD and the record raises the possibility that he is unemployable because of such service-connected disorder, the determination as to whether he is entitled to a TDIU is part and parcel of the rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this regard, while the Veteran stated in April 2010 that he had retired from a job as a designer for a power company after 30 plus years three years earlier, he indicated in his July 2011 VA Form 9 that he was no longer employed, and had no chance of being employed again, due to his anxiety attacks. Therefore, the issue of entitlement to TDIU has been raised by the record and, as such, has been included on the title page of this decision. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As an initial matter, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his PTSD. In this regard, he was most recently afforded a VA examination in July 2010. In the Veteran's January 2011 notice of disagreement, he reported that, since his July 2010 VA examination, he had been having periods of time where he forgot names, places, directions, and even things he had recently done. He also reported that it took him a long time to complete a task of any size and could not stay focused on the task at hand. He further reported problems with moodiness. In a March 2013 Informal Hearing Presentation the Veteran's representative indicated that the Veteran's PTSD had worsened. Specifically, the representative noted that a November 2010 VA treatment record showed complaints of suicidal ideation. A review of the available VA treatment records confirms that the Veteran reported suicidal ideation in November 2010. Specifically, the Veteran reported that he thought about driving his car under a semi-truck. Therefore, as the evidence suggests that the Veteran's PTSD may have increased in severity since the July 2010 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, in his July 2011 VA Form 9 the Veteran reported that he was in receipt of Social Security benefits. As above, the Veteran reportedly retired in approximately 2007. The Board acknowledges that the Veteran is currently above the age for Social Security retirement benefits; however, it is unclear whether the Veteran receives or has received Social Security disability benefits. Review of the claim file does not reveal that any attempt has been made to obtain the Veteran's complete Social Security records. Because Social Security records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, a remand is necessary in order to determine whether the Veteran is in receipt of Social Security disability benefits and, if so, to obtain these records. Additionally, the record reflects that the Veteran receives treatment for his PTSD through the Pocatello, Idaho, VA Community-Based Outpatient Clinic, which falls under the umbrella of the Salt Lake City, Utah, VA Medical Center. The most recent VA medical records in the claims file are dated in May 2011. Therefore, all outstanding VA treatment records from such facilities should be obtained on remand. Moreover, as noted previously, the Veteran has alleged that he is unable to work due to his PTSD. Specifically, in his July 2011 VA Form 9, he stated that he was no longer employed, and had no chance of being employed again, due to his anxiety attacks. Therefore, as indicated in the Introduction, the issue of entitlement to TDIU has been raised by the record. The Board notes that the Veteran is currently service-connected for PTSD, evaluated as 10 percent disabling, and tinnitus, evaluated as 10 percent disabling. On remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU and be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Additionally, any outstanding VA treatment records referable to his service-connected disabilities should be obtained and an opinion regarding whether such disabilities, either singularly or jointly, render the Veteran unemployable should be obtained. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain all VA treatment records from the Pocatillo VA Community-Based Outpatient Clinic, which is part of the Salt Lake City VA Medical Center system, dated from May 2011 to the present pertaining to all of the Veteran's service-connected disabilities, to include his PTSD. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Ascertain whether the Veteran has ever received disability benefits from the Social Security Administration (SSA). If so, obtain complete copies of any determination on a claim for disability benefits from SSA as well as the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 4. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD. The examiner should also specifically address the impact such disability has on the Veteran's employability. All opinions expressed should be accompanied by supporting rationale. 5. After completing the above, the Veteran's claims file should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, i.e., PTSD and tinnitus, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. All opinions expressed should be accompanied by supporting rationale. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims 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. 2012). _________________________________________________ A. JAEGER 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).