Citation Nr: 1329332 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 06-34 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for an anxiety disorder, not otherwise specified (NOS) and posttraumatic stress disorder (PTSD), as of July 28, 2003, to May 12, 2009 and in excess of 70 percent as of March 1, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the RO in St. Paul, Minnesota, which granted service connection for an anxiety disorder, NOS, and assigned an initial 30 percent disability rating, effective July 28, 2003. In a May 2005 rating decision, the RO increased the rating from 30 percent to 50 percent for the Veteran's service- connected anxiety disorder, effective July 28, 2003. Hearings were held before a Decision Review Officer (DRO) in May 2005 and August 2006. In November 2010, the Board remanded the claim for further evidentiary development. In an April 2012 rating decision, the RO granted a temporary 100 percent rating, effective May 13, 2009, due to psychiatric hospitalization over 21 days. The RO included PTSD as a part of the Veteran's service-connected psychiatric disability. See April 2012 SSOC. A 70 percent rating for the Veteran's psychiatric disability was thereafter granted, effective from March 1, 2010. This case was again remanded by the Board in November 2012, for VA examination. In the prior remand, the Board noted that the September 2012 written argument from the Veteran's representative raised the issue of entitlement to a separate rating for traumatic brain injury, secondary to the treatment received for his service- connected psychiatric disability. In reviewing the Virtual VA e-records and the claims file, it does not appear that any development has been instituted. As such, it is again referred to the Agency of Jurisdiction (AOJ) for appropriate action. The Veteran's claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND In April 2013 the RO issued a duty to assist letter advising him to submit treatment records. He was also advised that the VA would assist him in obtaining any medical records. In June 2013 after the issuance of the May 2013 supplemental statement of the case (SSOC), the Veteran reported that he was attending mental health classes at a VA medical facility. Although the VA examiner in February 2013 indicated that he reviewed the records from the Computerized Patient Record System (CPRS), the Board has not reviewed these records. The most recent VA outpatient treatment record, which is associated with the claims file, is from October 2010. The clinical documentation associated with this medical care has not been incorporated into the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). Moreover, it is unclear whether he is receiving Social Security Administration (SSA) benefits based on his age or instead because of disability, specifically his psychiatric disorder. VA outpatient record dated in March 2009 show that the Veteran applied for SSA benefits. In his applications for TDIU dated in October 2009 and April 2013, he also indicated that he is receiving "RSDI" benefits. This should be clarified and if necessary obtain any medical records associated with this claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992); see, too, Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) . A review of the claims file shows the Veteran underwent an initial vocational rehabilitation assessment in March 2009. Thus, his Vocational Rehabilitation and Counseling folder also needs to be obtained and associated with the claims file for consideration in this appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Minneapolis, Minnesota, VA facility that date from October 2010 to the present. 2. Also clarify whether the Veteran is receiving SSA benefits based on his psychiatric disorder; if he is, also obtain copies of the SSA's determinations and any medical or other records considered in deciding his claim for benefits from this other Federal agency. 3. Also obtain his VA Vocational Rehabilitation and Counseling folder and associate it with the claims file for consideration. 4. After associating any pertinent, outstanding records with the claims folder, if he is still available, forward the claims file to the VA examiner that performed the February 2013 evaluation of the Veteran and ask that he reassess the severity of his service-connected psychiatric disability. This determination also must necessarily include consideration of and comment on whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment given his level of education, prior work experience, and special training, etc. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment, then have someone else comment that is equally qualified to provide this necessary additional medical opinion. If this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed to make this determination of causation. And to facilitate providing this additional comment, it is imperative the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize himself with the pertinent evidence in the claims file) for the relevant medical and other history. This review includes considering this remand and the Board's prior remand. *If reexamination is necessary, the Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 5. Then adjudicate these claims in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims. The Veteran 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). These claims 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). _________________________________________________ K. Parakkal 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).