Citation Nr: 1337449 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-23 325A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from March 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted the Veteran's claim of service connection for PTSD and assigned a 30 percent rating effective July 22, 2005 (the date of the Veteran's claim). This matter also is on appeal from a May 2008 rating decision in which the RO denied, in pertinent part, the Veteran's claim of entitlement to a TDIU. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that his service-connected PTSD is more disabling than currently evaluated. He also contends that he is entitled to a TDIU because his service-connected PTSD precludes him from securing or maintaining substantially gainful employment. He further contends that he applied for VA vocational rehabilitation and was denied because his service-connected PTSD prevented him from being a suitable candidate for job retraining. A review of the Veteran's claims file shows that his VA vocational rehabilitation file has not been obtained and associated with his claims file. The Board notes in this regard that a review of internal email correspondence between RO employees in April 2009 indicates that these records were requested at that time and they may be located at the RO currently. A review of the May 2009 Statement of the Case (SOC) also indicates that the Veteran's VA vocational rehabilitation file was reviewed and considered in denying both of his currently appealed claims. The fact remains, however, that the Veteran's vocational rehabilitation file has not been associated with his claims file. The Veteran specifically contended in statements on an October 2010 VA Form 21-4138 that medical records in his VA vocational rehabilitation file demonstrated that he experienced total disability due to his service-connected PTSD. This suggests that there may be additional relevant VA records in the Veteran's VA vocational rehabilitation file which show both a worsening of his service-connected PTSD and entitlement to a TDIU and have not been obtained or associated with his claims file. The United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, on remand, the Veteran's complete VA vocational rehabilitation file should be obtained and associated with his claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate Federal records repository and request the Veteran's complete VA vocational rehabilitation file, to include a copy of any decision(s) on his application for VA vocational rehabilitation benefits. If necessary, conduct a one-time search of the RO's files to obtain the Veteran's complete VA vocational rehabilitation file. A copy of any request(s) sent to the appropriate Federal records repository, and any reply, to include any VA vocational rehabilitation records obtained, should be associated with the Veteran's claims file. 2. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if 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). 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). _________________________________________________ WAYNE M. BRAEUER 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) (2013).