Citation Nr: 1602093 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 08-30 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include on an extraschedular basis. 2. Entitlement to a rating in excess of 20 percent for right knee traumatic arthritis, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from December 1965 to December 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This case was before the Board in December 2011 when it was remanded for additional development. As noted in the December 2011 Board remand, the Veteran reasonably raised the issue of entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU issue was granted by the agency of original jurisdiction (AOJ), effective June 4, 2013, in an April 2015 rating decision. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing system. REMAND An April 2015 VA PTSD Disability Benefits Questionnaire (DBQ) report notes that the Veteran reported receiving disability benefits from the Social Security Administration (SSA). The claims file does not contain any evidence from SSA. VA's duty to assist the Veteran particularly applies to relevant evidence known to be in the possession of the Federal Government, such as VA or Social Security records. See 38 C.F.R. § 3.159(c)(2). Therefore, because the records from the SSA may contain pertinent information to all the Veteran's claims, VA is obligated to obtain them. Additionally, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a decision, Johnson v. McDonald, in which they rejected VA's interpretation that 38 C.F.R. 3.321(b)(1) only contemplates that referral for extraschedular consideration be made on an individual basis for each service-connected disability to determine if the disability picture rendered the schedular evaluation inadequate, and not on a collective basis. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In Johnson, the Federal Circuit determined that extraschedular consideration required consideration of the "collective impact" of the Veteran's service-connected disabilities in assessing the disability picture and whether it rendered the schedular criteria inadequate such that referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) is warranted. In the present case, the Veteran is service-connected for coronary artery disease, tinnitus and lower extremity scars, in addition to his PTSD and right knee disability. Accordingly, in light of Johnson, the Board has determined that a remand is appropriate so that the AOJ can determine if referral for an extraschedular evaluation is warranted. Accordingly, the case is REMANDED for the following action: 1. Request from SSA all of the records related to the Veteran's claim for Social Security disability benefits, including medical records and copies of any decisions or adjudication, and associate them with the claims file. All negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 2. In accordance with the decision in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), determine if referral to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is necessary based on the collective impact of the Veteran's service-connected disabilities on his disability picture and whether it renders the schedular evaluations inadequate. If the AOJ determines that referral is necessary, such referral should be made. 3. After completion of the above and any other development deemed necessary, review the expanded record, and readjudicate the issues of entitlement to increased ratings for PTSD and right knee disability, addressing both a schedular and extraschedular bases as warranted. 4. If any benefit on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ GAYLE E. STROMMEN 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).