Citation Nr: 1540761 Decision Date: 09/22/15 Archive Date: 10/02/15 DOCKET NO. 13-08 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran; D.T. ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, OH, which granted the Veteran's claim of entitlement to service connection for PTSD and assigned a 30 percent disability with an effective date of March 10, 2009. In a filing of November 2014, the Veteran's representative stated, "The veteran would like to file for an increase in PTSD compensation [from] a 30% rating to 50% rating. The basis for increase is documented evidence which shows the veterans inability to word [sic] due to his PTSD diagnoses. Unemployment since 1980 demonstrates a disability picture, proof positive, that the veteran does in fact have occupational and social impairment." When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as part of the underlying claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran has indicated that he is unemployable due to the service-connected disability on appeal, the issue of a TDIU is before the Board. In May 2015, the Veteran testified at a Board hearing chaired by the undersigned Acting Veterans Law Judge. A transcript of the Board hearing have been associated with the Veteran's claims file. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS). Any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record indicates that there may be outstanding VA treatment records pertaining to the Veteran's service-connected PTSD disability. In a notice of disagreement (NOD) filed in June 2011, the Veteran stated, "I have had 5 sessions with the counselor at the VA Outpatient Clinic in St. Clairsville, OH." Furthermore, in his Form 9 appeal filed in February 2014, the Veteran stated, "In your list of evidence you don't identify the VA Outpatient Clinic (St. Clairsville, Ohio) records. Please obtain these in support of my claim." In addition, at the May 2015 Board hearing, the Veteran testified that he "went to the VA up in St. Clairesville to another psychologist and we discussed what's going on . . . about a week ago." The Veteran also testified that he had had "seven examinations about two years ago." See transcript of May 2015 Board hearing. The record currently contains some VA treatment records from the Belmont County Community Based Outpatient Clinic in St. Clairsville, Ohio (Belmont CBOC) dating from September 2004, December 2005, January 2008, and these records appear to potentially relate to the Veteran's PTSD condition. The record also contains Belmont CBOC records from October 2014 that relate to a skin condition of the Veteran and not to PTSD. VA must obtain records in VA's "constructive possession." See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of the Board during the consideration of a claim, regardless of whether those records are in the claimant's claims file. Id. When put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. See Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). In light of the foregoing, the Board concludes that an attempt should be made to identify all outstanding records relating to the Veteran's PTSD, including any records of the Veteran located at the Belmont CBOC in St. Clairsville, Ohio, and to associate the records with the Veteran's claims folder. As noted above, the Board has also jurisdiction over the Veteran's request for TDIU. As the Veteran's claim for a higher PTSD rating is being remanded for any outstanding treatment records and a medical evaluation as to the current severity of the Veteran's PTSD, the TDIU matter which is part and parcel of the PTSD rating claim should also be remanded for a VA medical opinion as to any current functional impairment caused by the Veteran's service-connected PTSD. See Rice, 22 Vet. App. at 453-54. As part of its remand order, the Board will direct that proper notice be provided regarding the TDIU issue, and that appropriate development be undertaken. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter that satisfies all VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The notice letter should specifically apprise the Veteran of the information necessary to substantiate a claim for TDIU and of the procedure for submitting VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Take appropriate steps to obtain from the Veteran the names and addresses of all medical care providers who have treated him for a psychiatric disorder, including PTSD. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. 3. Obtain complete, updated VA treatment records not already of record, including any outstanding treatment records from the Belmont County Community Based Outpatient Clinic in St. Clairsville, Ohio. 4. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 5. Thereafter, schedule the Veteran for a VA mental disorders examination. The claims file must be made available to the examiner, and the examiner must specify in the examination report that the records have been reviewed. All tests and studies deemed necessary by the examiner should be performed. The examiner should describe in detail all current manifestations of the Veteran's PTSD under the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). In making the relevant clinical findings, the examiner should specifically note and discuss the Veteran's current complaints, symptoms, and any interference with daily and/or occupational activities. The examiner is asked to interview the Veteran as to his education, training, and work history, and to opine on the extent to which PTSD, along with the service-connected bilateral hearing loss and tinnitus, interferes with the ability to secure and follow substantially gainful employment. 6. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development deemed warranted. Thereafter, readjudicate the increased rating claim, including TDIU. If this readjudication does not result in a complete grant of all benefits sought by the Veteran in connection with his claim for an increased rating for service-connected PTSD and for TDIU, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time in which to respond. Thereafter, the case must be returned to the Board. The Veteran 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 be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).