Citation Nr: 1428683 Decision Date: 06/25/14 Archive Date: 07/03/14 DOCKET NO. 11-01 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial evaluation higher than 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1968. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection form PTSD with an initial 50 percent evaluation, effective June 25, 2009. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing held at the RO in April 2013. A transcript of the hearing is associated with the claims file. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's April 2013 hearing testimony specifically raised the issue of entitlement to a TDIU as a result of his psychiatric disability, by describing an inability to work due to symptoms including nervousness around people and being easily agitated, with a history of not working since 2009 and being recently awarded Social Security Disability due to such symptoms. In May 2013, the Veteran filed a formal claim for entitlement to TDIU, thus rendering moot the need to further consider this matter under Rice. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately the Board finds that it is necessary to remand this matter to address evidentiary deficiencies. At his April 2013 hearing the Veteran described having recently been awarded benefits from the Social Security Administration (SSA) based on disability, in particular his PTSD. Although the claims file was held open for 30 days to afford the Veteran the opportunity to obtain records from the SSA, he only submitted a copy of the SSA decision and some written statements both from lay witnesses and his counselor. Thus this matter must be remanded to request the complete records used in the SSA decision. The matter should also be remanded to ensure that the most up to date records from the VA/Vet Center are obtained. The Veteran has testified as to receiving ongoing treatment from the VA, including the Vet Center, and the VA facilities from locations in Mather and Sacramento. Such records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus on remand, the Veteran's Vet Center treatment records should be associated with his claims file. Additionally an attempt should be made to obtain any recent VA or private treatment records, as the most recent records are dated in 2012. Additionally a VA examination is necessary to address his current PTSD symptoms as the most recent VA examination was done in November 2009, nearly 5 years ago. Given the need to obtain additional records and the Veteran's testimony about his current symptoms, a new VA examination should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should request from SSA a copy of any disability determinations concerning the Veteran, as well as copies of all medical records underlying any such determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The AMC should obtain any of the Veteran's outstanding VA treatment records up to the present time, including those from the Vet Center, and the VA facilities from locations in Mather and Sacramento, in addition to any others identified by the Veteran. Any attempts to obtain these records and responses received thereafter should be associated with the appellant's claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 3. After obtaining any available treatment records pursuant to the above requests, the Veteran should be scheduled for a new VA examination to determine the current level of severity of his service-connected PTSD. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary testing should be provided. The examiner should write a comprehensive report discussing the current severity of the Veteran's PTSD, with particularity to the criteria for the appropriate diagnostic codes. Furthermore, the examiner should also specifically comment on the effects of the Veteran's PTSD on his occupational functioning and daily activities. The examiner should opine as to whether the Veteran's service-connected disability (PTSD) renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the increased rating claim should be readjudicated and the TDIU claim adjudicated. If any claim for which a notice of disagreement has been filed remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the issue should be returned to the Board for further 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. 2013). _________________________________________________ THOMAS J. DANNAHER 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).