Citation Nr: 1330029 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 11-02 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The RO granted service connection for PTSD and assigned a 30 percent evaluation therefor, effective March 19, 2010. The Veteran seeks a higher rating. In August 2011, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing held at the RO. A transcript of that hearing has been prepared and associated with the claims file. During the August 2011 hearing, the Veteran asserted, in essence, that he was unable to work as a result of symptoms associated with service-connected PTSD. In light of the Veteran's testimony, the Board has expanded the appeal to include the matter of his entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (if, in connection with making a claim for the highest rating possible for a disability, a claimant submits evidence of a medical disability, and evidence of unemployability, the matter of the claimant's entitlement to a TDIU is considered a component of the claim for a higher rating). The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons stated, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required on his part. REMAND Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)), upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally speaking, when VA receives a complete or substantially complete application for benefits, VA is also required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2012). In addition, VA is required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In the present case, the Veteran has not been provided VCAA-compliant notice, or a VA Form 21-8940 (Veteran's Application for Increased Compensation Based in Unemployability), with respect to the matter of his entitlement to TDIU. This needs to be accomplished. With respect to the duty to assist the Veteran in obtaining medical evidence, the Board notes that the Veteran has reported that he was treated for PTSD by a Dr. Z. at the Vet Center in Rochester, New York. Although the claims file contains progress notes from the VA Community Based Outpatient Clinic (CBOC) in Rochester, and some of those notes have been electronically cosigned by Dr. Z., it does not appear from the available evidence that any efforts have been made to obtain a complete copy of all relevant records in the possession of the Vet Center in Rochester. Because such records, if obtained, might contain information bearing on the Veteran's appeal, efforts should be made to procure them. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). With respect to the need for a medical examination and/or opinion, the Board notes that the Veteran last underwent a VA PTSD examination, for compensation purposes, in April 2010. Since that time-to include in testimony offered at the hearing in August 2011-he has indicated that his condition has gotten worse (and, indeed, that he is now unemployable as a result of service-connected symptomatology). Under the circumstances, another examination is required. See, e.g., 38 C.F.R. § 3.327(a) (2012) (re-examinations are generally required if evidence indicates that there has been a material change in a disability or that the current rating may be incorrect). Records of the Veteran's mental health treatment through the VA CBOC in Rochester, New York were last procured for association with the claims file on March 18, 2011. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). For the reasons stated, this case is REMANDED for the following actions: 1. Send a VCAA notice letter to the Veteran and his representative notifying them of the information and evidence necessary to substantiate a claim for TDIU, to include on an extraschedular basis. See 38 C.F.R. § 4.16(b). As part of the notice, ask the Veteran to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based in Unemployability). 2. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the Vet Center in Rochester, New York, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 3. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VA CBOC in Rochester, New York, since March 18, 2011, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA mental disorders examination for purposes of evaluating the current severity of his service-connected PTSD, and to obtain an opinion as to whether his service-connected disabilities render him unemployable. The claims file must be made available to the examiner, and the examiner should indicate in the report of the examination that the claims file has been reviewed. After examining the Veteran, and conducting any evaluations, studies, and/or tests deemed necessary, the examiner should fully describe any and all functional deficits associated with the Veteran's service-connected PTSD. The examiner should specifically address the impact PTSD has on the Veteran's social and occupational functioning, and assign a Global Assessment of Functioning (GAF) score and explain the basis for that finding. The examiner should also 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 ischemic heart disease), 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. If consultation with one or more specialists (e.g., a cardiologist) is deemed necessary, that should be accomplished. A complete rationale for all opinions should be provided. 5. After conducting any additional development deemed necessary, the issues on appeal should be reviewed. If any benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative, and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter 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 (Court) 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2012).