Citation Nr: 1340344 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-31 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with depression and pseudoseizures. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to February 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from December 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The United States Court of Appeals for Veterans Claims has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for an initial rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if during the course of an initial rating appeal, the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an initial rating is sought (in this case, the Veteran has alleged that he is unemployable due to his PTSD), then part and parcel with the initial rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. Here, at his March 2013 Board videoconference hearing, the Veteran testified that he was unemployable due to his service-connected PTSD symptomatology. As such, the issue of entitlement to a TDIU is currently before the Board. 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 The Veteran seeks entitlement to an initial rating in excess of 30 percent for his service-connected PTSD with depression and pseudoseizures, entitlement to service connection for hepatitis C, and entitlement to a TDIU. The evidence in the file indicates the Veteran has begun receiving disability benefits from the Social Security Administration (SSA). Specifically, at his March 2013 Board videoconference hearing, the Veteran testified that he was unemployed since 2009 due to a back disability as well as his service-connected psychiatric symptomatology, and that he was awarded SSA disability benefits in January 2009 or February 2009. However, the Veteran's SSA records are not on file, and thus neither a decision regarding this award nor any of the medical records used in the decision have been associated with the claims file. VA's duty to assist specifically includes requesting information from other Federal departments. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). Moreover, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claim for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here, especially with respect to the increased rating and TDIU claims, and the RO should thus request the Veteran's SSA records. See Golz, 590 F.3d at 1321. In addition, with respect to the Veteran's claim for entitlement to an initial rating in excess of 30 percent for PTSD with depression and pseudoseizures, the Board notes that he was last provided a VA PTSD examination in May 2012. However, evidence associated with the claims file since that time suggests that the Veteran's psychiatric symptomatology worsened in severity since the May 2012 examination. For instance, the May 2012 VA examination report indicated that the Veteran stopped working as a truck driver due to low back pain, while the Veteran testified at his March 2013 videoconference hearing that he was also unemployable due to his psychiatric symptomatology, to include having his driving privileges restricted due to his pseudoseizures. Moreover, the May 2012 examination report indicated that the Veteran suffered from panic attacks weekly or less often, while he testified at his March 2013 Board videoconference hearing that he experienced panic attacks 8 to 10 times per week. The May 2012 examination report also indicated that the Veteran suffered from chronic sleep impairment due to nightmares and intrusive thoughts and was able to sleep 3 to 4 hours per night, while the Veteran testified at his March 2013 hearing that he was only able to sleep approximately 2 hours per night. Furthermore, the May 2012 examination report indicated that the Veteran did not experience suicidal ideation, while he testified at his March 2013 hearing that he would have suicidal thoughts but never attempted suicide. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Weggenmann v. Brown, 5 Vet. App 281 (1993). Therefore, a remand is required in order to schedule the Veteran for a new VA examination to assess the current severity of his PTSD. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and request a copy of any decision made pursuant to a claim of the Veteran for disability benefits, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's paper claims file or uploaded into the Veteran's electronic file contained in the Virtual VA system. Efforts to obtain these and any other Federal records must continue until the RO or AMC determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the Veteran and his representative, and he must then be afforded an opportunity to respond. 2. Obtain all treatment records for the Veteran from the Dallas VA Medical Center in Dallas, Texas, from March 2011 to the present. All attempts to obtain these records, not already of record, should be documented in the file. 3. Send the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) for completion and return to VA. 4. Once the above actions have been completed, schedule the Veteran for a VA psychiatric examination in order to determine the current severity of his PTSD with depression and pseudoseizures. The claims file must be made available to the examiner for review. All necessary tests should be conducted and the examiner is requested to review all pertinent records associated with the claims file. Following this review and examination, the examiner is requested to report complaints and clinical findings pertaining to the Veteran's PTSD in detail. The examiner should determine the extent of the Veteran's PTSD symptoms as well as the effect on his social and occupational functioning and provide a Global Assessment of Functioning (GAF) score due to PTSD. The examiner is also requested to opine as to whether it is at least as likely as not that the Veteran's service-connected symptomatology precludes the Veteran from engaging in substantially gainful employment consistent with his education and occupational experience. Rationale should be provided for the opinion offered. 5. Then readjudicate the issues on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant and his representative, and they should be afforded an adequate opportunity to respond. 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). _________________________________________________ U. R. POWELL 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).