Citation Nr: 1338319 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-18 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to January 1969. This appeal comes before the Board of Veterans' Appeals (Board) from December 2009 and June 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2012, VA was notified that the Veteran died on September [redacted], 2012. The claim was previously before the Board at that time and in a December 2012 decision, it was dismissed for lack of jurisdiction. In October 2012, the Veteran's spouse, hereinafter Appellant, petitioned to continue the appeal via substitution. In promulgating the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), Congress created a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who, as the Veteran in the instant case, dies on or after October 10, 2008. A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. In this case, the Appellant was granted substitution to continue the Veteran's appeal on May 2013. The Board will continue jurisdiction over this claim accordingly. A review of the Virtual VA paperless claims processing system revealed copies of the Veteran's VA outpatient treatment records. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Appellant's claim. Remand is required to obtain the Veteran's Social Security Administration (SSA) records as well as outstanding private treatment records. First, remand is required to obtain the Veteran's SSA records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including records from Federal agencies, such as relevant SSA records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The claims file indicates that the Veteran was in receipt of SSA benefits via an April 2010 notice of disagreement in which the Veteran stated that he was receiving SSA benefits based upon his PTSD and that he was totally disabled. However, the claims file does not indicate that the RO ever attempted to obtain such records nor have any records from SSA been associated. As such, remand is required to obtain the SSA records. Second, VA also has a duty to assist claimants to obtain private treatment records needed to substantiate a claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c). In January 2010 statement from the Veteran, it was indicated that he submitted a copy of a private psychiatrist's report dated January 19, 2010. This report was also referenced in a subsequent April 2010 rating decision and statement of the case. However, it does not appear that this record has been associated with the claims file. As such, a request should be made to the Appellant to acquire authorization to retrieve these records and associate them with the claims file. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Appellant should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated the Veteran for the disability on appeal. In particular, the AMC should attempt to obtain the January 19, 2010 private treatment record from the Veteran's psychiatrist. After the Appellant has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Appellant, a notation to that effect should be inserted in the file. The Appellant is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. Contact the SSA and obtain all medical records associated with the Veteran's disability award. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and documented for the record. Notice must be provided to the Apellant. The notice must contain the identity of the records, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim, notice that the Veteran is ultimately responsible for providing the evidence, and notice that the Veteran may provide alternative forms of evidence. Associate all documents obtained with the claims file. 3. After completing the above action, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Appellant. After the Appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ 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) (2012).