Citation Nr: 1327960 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-04 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder prior to March 16, 2010, and in excess of 70 percent thereafter. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from June 1967 to January 1970. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Regional Office (RO) in Togus, Maine, for the Detroit, Michigan RO. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. However, in correspondence received in August 2011, the Veteran cancelled his hearing request. During the course of the appeal, by rating decision in August 2010, the RO granted an increased 70 percent rating for PTSD, effective March 16, 2010. However, inasmuch as a higher rating is available for PTSD both before and after March 16, 2010, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, entitlement to a TDIU was granted in an August 2010 rating decision, effective March 16, 2010. The Board recognizes that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). That said, claims for increased evaluations and TDIU claims may be separately adjudicated. See id. at 454. In this case, following the August 2010 rating decision the claims file does not indicate the Veteran has expressed a desire to appeal any aspect of the TDIU claim as required pursuant to 38 C.F.R. § 20.1103. Therefore, the TDIU issue is not on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further evidentiary development. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). In this case, a February 2009 letter from E.D., L.M.S.W., reflects that the Veteran experienced an increase in panic attacks and body tremors. E.D. opined that the Veteran was unemployable due to the possibility of creating an accident in the workplace due to his PTSD symptoms. Additional December 2009 and March 2010 letters from A.S., F.N.P.-B.C show that the Veteran's symptoms had increased in severity to the point where he could no longer be accommodated at his job. Indeed, on the basis of these letters, an increased 70 percent rating for PTSD and entitlement to a TDIU were granted by way of an August 2010 RO decision.. Significantly, however, a careful review of the claims file and Virtual VA file reveals that in spite of the documented increase in symptoms, the Veteran last received a VA examination for compensation and pension purposes in April 2008-significantly prior to the writing of aforementioned letters. Accordingly, the Board finds that a more contemporaneous VA medical examination is warranted. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Additionally, the record reflects that he has been treated for his PTSD at the VA Medical Center. However, the last treatment records in the claims folder and Virtual VA file are dated in January 2008. Because VA is on notice that there are records that may be applicable to the Veteran's claim and because these records may be of use in deciding the claim, these records are relevant and must be obtained. 38 C.F.R. § 3.159 (c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, the Veteran has indicated that he is in receipt of disability benefits from the Social Security Administration (SSA). However, no records from the SSA have been associated with the claims file or Virtual VA file. Because VA is on notice that there are records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained. 38 C.F.R. § 3.159 (c) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO or AMC, with any necessary authorization from the Veteran, should obtain all of his outstanding records from the Social Security Administration and VA Medical Center. All attempts to locate these records must be documented in the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. Then, the RO or AMC should schedule the Veteran for a psychiatric examination in order to determine the severity of his service-connected PTSD. The examiner should describe the Veteran's symptoms and note the impact, if any, of the Veteran's PTSD on his social and industrial functioning. The examiner should indicate whether the Veteran's PTSD is manifest by total occupational and social impairment. A report of the examination should be prepared and associated with the Veteran's VA claims folder. 3. The RO or AMC should notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled 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. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 4. Then, after ensuring any other necessary development has been completed, the RO or AMC should readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). _________________________________________________ DAVID L. WIGHT 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).