Citation Nr: 1331410	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-28 000	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for white matter lesions on the brain.  

2.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  

3.  Entitlement to a total disability rating for individual unemployability due to a service-connected disability (TDIU).  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Timothy D. Rudy, Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 2009 and August 2009 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

In March 2012, the Veteran and his wife testified before the undersigned during a Board hearing held at the RO.  A transcript of that hearing is of record.  During the hearing, the Veteran submitted additional evidence accompanied by a signed waiver of initial RO consideration of this newly-submitted evidence.  Therefore, the Board accepts this additional evidence for inclusion in the record.  See 38 C.F.R. §§ 20.800, 20.1304(c) (2012).  

A TDIU claim is part of an increased disability rating claim when that claim is raised by the record.  When evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  There was evidence of the Veteran's unemployability which may be due to his service-connected PTSD presented during his Board hearing.  Therefore, the issue of entitlement to a TDIU is before the Board.  

The issues of a higher initial rating for PTSD and for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDING OF FACT

In March 2012, prior to the promulgation of a decision, the Veteran withdrew his appeal pertaining to entitlement to service connection for white matter lesions on the brain.  


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal, regarding the claim of entitlement to service connection for white matter lesions on the brain have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).   


REASONS AND BASES FOR FINDING AND CONCLUSION

Withdrawal of Claim

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204.  

In March 2012, the Veteran's representative stated during the Veteran's Board hearing that the Veteran wished to withdraw his claim for service connection for white matter lesions on the brain.  This withdrawal has been reduced to writing in the printed transcript of the Board hearing associated with the claims file.  

No allegations of errors of fact or law, therefore, remain for appellate consideration of this claim.  Accordingly, the Board does not have jurisdiction to review the appeal of this claim, and it is dismissed.  


ORDER

The appeal concerning the claim of entitlement to white matter lesions on the brain is dismissed.  


REMAND

Unfortunately, a remand is required for the Veteran's remaining claims on appeal.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claims so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012).  

The Veteran is seeking a higher rating for his service-connected PTSD.  The Board notes that a private psychological assessment dated in October 2009 is found in the claims file.  A heading on the report indicates that it was prepared in connection with the Veteran's application for disability benefits from the Social Security Administration (SSA).  

In the intervening time period, there is no indication that the RO attempted to determine whether the Veteran was in receipt of SSA disability benefits, and if so, attempt to obtain any SSA records.  Records associated with the SSA file may be relevant to whether the severity of the Veteran's service-connected PTSD increased during the period of this appeal and whether he can secure and follow substantially gainful employment.  Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  Thus, any SSA decision and records must be considered relevant to his current claims for VA compensation.  

As there is a reasonable possibility that the SSA records could help the Veteran substantiate his claims now on appeal, the duty to assist requires VA to attempt to obtain those records.  

The Board also notes that the Veteran and his wife testified that his PTSD had worsened since his last VA mental examination in June 2009.  They testified that such symptoms as anxiety attacks, panic attacks, depression, memory lapses, self-isolation, and his attitude had all worsened since his last VA examination.  See hearing transcript at pp. 17-19.  

The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  However, in this case, the Board believes that supplemental information is required prior to the adjudication of the higher rating claim on appeal and that a current evaluation of the Veteran's PTSD symptomatology would prove helpful in adjudicating the merits of the claim.  Moreover, testimony at the Board hearing indicated that the Veteran's PTSD symptomatology is worse than that reflected in the June 2009 VA examination report.  Therefore, a new and contemporaneous VA examination should be administered to determine the Veteran's current disability.  See 38 C.F.R. § 3.159 (2012); see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).  

As it remains unclear to the Board whether the Veteran's PTSD symptoms may be worsening, the Board finds that a new examination is in order.  Thus, the Board finds that a remand for a new VA examination is necessary in order to fairly address the merits of his claim.  

As noted in the Introduction, the issue of entitlement to a TDIU is raised by the record as part of the Veteran's increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board cannot currently determine, based on the medical evidence found within the claims file, whether the Veteran is unable to secure and follow substantially gainful employment by reason of his current service-connected disabilities to meet the requirements for a TDIU.  Thus, further development of the claim is needed.  

On remand, the RO/AMC should also obtain and associate with the claims file all outstanding VA medical records related to the Veteran's claims.  The Board notes that there are no VA treatment records found in the Virtual VA electronic file related to PTSD dated after March 2012.  Therefore, any additional VA medical records should be obtained.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran and his representative with a notice letter pertaining to his TDIU claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

2.  Obtain all VA treatment records since March 2012 from the Mountain View VAMC in Tennessee.  These records should be associated with the claims file or entered in the Veteran's Virtual VA eFolder.  

3.  Obtain from the Social Security Administration (SSA) the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim.  If medical evidence used in processing any claim is not available, that fact should be documented by SSA and notice entered in the claims folder.  

4.  The RO/AMC shall schedule the Veteran for an appropriate VA examination with a psychiatrist or psychologist other than the examiner who conducted the June 2009 examination to determine the current severity of his service-connected PTSD.  The claims file and a copy of this Remand must be made available to the examiner for review and the examination report should note that review.  The report of the examiner should be comprehensive.  The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present.  All necessary and indicated special studies or tests, to include psychological testing, should be accomplished.  The examiner shall assign a numerical code under the Global Assessment of Functioning Scale (GAF).  The examiner should also indicate the degree of social and occupational impairment due to PTSD and whether his PTSD renders him unemployable.  

A complete rationale for all opinions expressed should be provided.  

5.  Thereafter, the RO/AMC should readjudicate the Veteran's claim for an initial rating in excess of 30 percent for PTSD and for a TDIU.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  Thereafter, the case should be returned to the Board for the purpose of appellate disposition.  

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).  

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).  




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs