Citation Nr: 1510912 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 12-26 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2015, the Veteran and his spouse testified at a video conference hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file. The Board notes a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. Specifically, the Veteran has not asserted that he was unemployed due to his PTSD, the issue herein on appeal. Moreover, in January 2015 testimony, the Veteran stated he took an early retirement when it was offered because he has difficulty walking. Therefore, further consideration of a TDIU is not warranted. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND When the evidence indicates that a disability has worsened since the last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board notes that the Veteran's most recent PTSD VA examination was conducted in October 2011 with respect to PTSD. In January 2015 testimony, the Veteran indicated that his symptoms have worsened in the last few years and he has been prescribed additional medications. This is supported by testimony of the Veteran's spouse who also stated that the Veteran's symptoms have worsened since she has known him, a period of time she characterized as over the last two years. Thus, as the severity of the Veteran's PTSD may have worsened and because the most recent VA examination was conducted several years ago, a new VA examination for the claim is warranted. In January 2015 testimony, the Veteran also indicated he received counseling from his employer within the last 5 or 6 years. However, private counseling records are not associated with the claims file. Thus, the Board finds that the Veteran should also be afforded another opportunity to submit additional records related to private counseling he recieved approximately 5 or 6 years ago, or any other relevant private treatment records, to VA, or complete authorization forms permitting VA to obtain these records on his behalf. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Also in January 2015 testimony, the Veteran stated he receives disability benefits from the Social Security Administration (SSA). There are no SSA records associated with the claims file, and there is no indication that VA has attempted to obtain any such records. While SSA records are not controlling for VA determinations, when VA is put on notice of the existence of SSA records, and such records may be pertinent to a VA claim, VA must seek to obtain those records before proceeding with the appeal. Thus, the relevant SSA records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. Finally, in light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran most recently received VA treatment from the Chattanooga Community Based Outpatient Clinic (CBOC), part of the Tennessee Valley Healthcare System in July 2011. Thus, on remand, updated VA treatment records from the Tennessee Valley Healthcare System, to include the Chattanooga CBOC, and all associated outpatient clinics, since July 2011, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from the the Tennessee Valley Healthcare System, to include the Chattanooga CBOC, and all associated outpatient clinics, since July 2011, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Obtain and associate with the record, all records pertaining to the Veteran concerning a claim for disability benefits from the Social Security Administration , to include all evidence and a copy of all disability determinations. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Obtain the necessary authorization from the Veteran and then attempt to obtain any records related to private counseling received approximately 5 or 6 years ago, or relevant records from any other identified provider. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 4. Thereafter, schedule the Veteran for a VA psychiatric examination. The complete record, to include a copy of this remand, and electronic file records must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must comment on the frequency and the severity of the psychiatric symptomatology attributable to the Veteran's service-connected PTSD. Furthermore, the VA examiner should provide an opinion as to the Veteran's GAF score due solely to his service-connected PTSD, without regard to any nonservice-connected psychiatric disorders that may be diagnosed. If the service-connected psychiatric disability manifestations cannot be clinically distinguished from manifestations of any nonservice-connected psychiatric disability, such should be stated in the examination report, and all psychiatric findings should be considered in combination. A complete rationale for all opinions expressed must be provided. 5. The Veteran must be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). 6. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014).