Citation Nr: 1327544 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 11-02 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than April 14, 2009 for the grant of service connection for PTSD. 3. Entitlement to an initial rating in excess of 10 percent for tinnitus. 4. Entitlement to a total disability rating for compensation based on unemployability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to June 1969. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision that granted entitlement to service connection for PTSD, evaluated as 50 percent disabling, granted entitlement to service connection for tinnitus, evaluated as 10 percent disabling, and denied service connection for skin cancer and hearing loss. The Veteran filed a notice of disagreement dated in July 2010 challenging the evaluations of his service-connected PTSD and tinnitus, as well as the effective date of the grant of service connection for PTSD. The RO issued a statement of the case dated in January 2011, and the Veteran submitted his substantive appeal in January 2011. After the RO issued the January 2011 statement of the case, he submitted additional evidence relevant to his claims. This evidence was accompanied by a waiver of RO consideration. As such, the case does not need to be remanded for initial RO consideration. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. At times the Veterans of Foreign Wars of the United States has acted as the Veteran's representative. The record contains no evidence that he has appointed that organization as his representative. The only appointed representative is the New York State Division of Veterans Affairs. In a July 2009 statement the Veteran raised the issue of entitlement to service connection for a gastrointestinal disability, which he described as bleeding ulcers. This issue is referred to agency of original jurisdiction for initial adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Subsequent to the statement of the case, the Veteran's current representative has not had an opportunity to review the record and provide argument on the Veteran's behalf. Since the most recent VA examination for PTSD in October 2009, the Veteran has submitted evidence showing ongoing treatment and statements contending that his PTSD has worsened. He is entitled to a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA received the Veteran's claim for service connection for PTSD on April 14, 2009. Ordinarily this would be the earliest possible effective date for service connection. 38 U.S.C.A. § 5110(a) (West 2002). An earlier effective date is; however possible under the provisions of 38 C.F.R. § 3.114 (2012), which permit VA to grant an effective date one year prior to the date of claim, if there was a liberalizing issue and the Veteran met the criteria for service connection continuously from the date of the liberalizing issue. VA's General Counsel has held that the addition of PTSD to the rating schedule in 1980 was a liberalizing issue. VAOPGCPREC 26-97, 62 Fed. Reg. 63,604 (1997). The Veteran essentially contends that he has met the criteria for service connection since 1969. A medical opinion is required. He has reported that he sought treatment, apparently for PTSD, at VA facilities in Batavia and Rochester, New York, in 1969 and 1970. Records of this treatment are not in the claims file, but would be relevant to the initial rating and effective date issues. He has also reported that his wife could provide evidence of his PTSD symptoms. He has also indicated that employment records might be available for a period in 1979, when he was placed on leave for PTSD. TDIU, is an element of all initial ratings. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has not employed as of February 2009 and that his PTSD symptoms had become debilitating as his career ended and he retired. The 2009 VA examination yielded a GAF score of 35, which is indicative of an inability to work, while subsequent GAF scores have been in the moderate ranged between 53 and 58. An opinion is needed as to whether the Veteran. Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his claimed disability, to include updated treatment records from VA. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain records of the Veteran's VA treatment for PTSD or mental health issues at VA facilities in Rochester and Batavia, New York in 1969 and 1970, and at VA facilities since April 2013. Efforts to obtain the records should continue until they are obtained, unless it is reasonably certain they do not exist or further efforts would be futile. 2. Ask the Veteran to provide authorization for VA to obtain employment records from Frontier Communications (formerly Rochester Telephone Corporation) pertaining to his leave of absence for PTSD in 1979. If he does not provide the authorization, tell him he may obtain the records himself and submit them to VA. 3. If any requested records cannot be obtained, inform the Veteran, tell him what efforts were made to get the records, and of any further actions that will be taken with regard to his appeals. 4. Ask the Veteran to complete an application for TDIU. 5. Invite the Veteran to submit a statement from his wife regarding PTSD symptoms during the period beginning in 1980. 6. After obtaining available records, afford the Veteran a VA examination in order to assess the current severity of his PTSD; obtain an opinion as to the approximate date of onset; and an opinion as to whether the service connected disabilities render him unemployable. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must note in the examination report or addendum that the claims file was reviewed. In addition to reporting the current severity of the PTSD and associated disability; the examiner should provide an opinion as to whether the Veteran met the criteria for a diagnosis of PTSD continuously since 1980. The examiner should also render an opinion as to whether the service-connected tinnitus and PTSD would prevent the Veteran from obtaining and maintain employment paying above the poverty level and for which his education and experience would otherwise qualify him. 7. Afford the Veteran's current representative an opportunity to review the claims file and submit additional evidence and argument on his behalf. The current representative appears to be the New York State Division of Veterans Affairs. 8. If any benefits sought on appeal are not fully granted, issue a supplemental statement of the case, before the record is returned to the Board, 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2013). ______________________________________________ Mark D. Hindin 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).