Citation Nr: 1608365 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 14-25 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 2001 to October 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2011 and August 2012 rating decisions of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in October 2012. The RO issued a statement of the case (SOC) in June 2014. The Veteran subsequently perfected his appeal with a VA Form 9 in July 2014. As will be discussed in more detail below, the Board finds that a claim of entitlement to a TDIU has been raised by the Veteran and is part and parcel of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to VA Vocational Rehabilitation and Employment benefits under 38 U.S.C. Chapter 31 has been raised by the record in a December 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2015). The Veteran claims that he is entitled to an initial rating in excess of 50 percent for his service-connected PTSD. In August 2012 the Veteran had a VA examination, and was diagnosed with posttraumatic stress disorder. The Veteran had symptoms such as suspiciousness, difficulty with trusting others, hypervigilance and paranoia. The Veteran was assigned a global assessment of functioning score of 45, and the examiner noted the Veteran's symptoms cause occupational and social impairment with reduced reliability and productivity. In October 2012 the Veteran submitted a statement that his condition had worsened since August of 2012. In August 2013 the Veteran underwent a VA examination, and was assigned a global assessment of functioning score of 42. The examiner noted the Veteran had occupational and social impairment with reduced reliability and productivity, as a result of his PTSD. The Veteran reported thoughts of injuring his self or others, but there was no imminent threat at that time. The Veteran had suicidal ideation without the intent to act. In December 2013 the Veteran was scheduled for anther psychiatric examination, however failed to report to the exam. 38 C.F.R. § 3.326(a) (2013) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations, and when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with a claim for increase, the claim shall be denied. Here, based upon a review of the record, it is unclear as to the cause of the Veteran's failure to appear. It seems from the record the Veteran moved in October 2013, and later in June 2014, sought housing assistance at the West Haven VAMC. The Veteran then submitted a statement in July 2014 to the effect that his symptoms had worsened in nature. It is not apparent from the record which address the notice was sent to with regard to the scheduled VA examination. Therefore, the Board will refrain from denying the claim on the basis of the Veteran's failure to miss the scheduled December 2013 examination. In July 2014 the Veteran submitted a statement noting that since being diagnosed with PTSD his life has faced many obstacles. The Veteran reported going through a divorce, and an inability form any sort of friendships or relationships with family members. The Veteran reported having been charged with assault, and an inability to maintain employment. 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 Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran last had a VA examination in August 2013. In July 2014 the Veteran submitted a statement that his PTSD symptoms had worsened, as shown by his inability to hold a job, and maintain relationships with family members. Given the above, the Board finds that VA's duty to provide a VA examination and obtain a medical opinion has been triggered. A VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the Veterans Claims Assistance Act of 2000, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). The Veteran contends that he cannot work due to service-connected disabilities. He has therefore raised a claim for TDIU. See Roberson v. Principi, 251 F. 3d 1378, 1384 (Fed. Cir. 2001) (once a Veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The court has held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). On the Veteran's VA Form 9, in July 2014, the Veteran contended that he is unable to maintain employment. 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 an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). In this case, as noted above, a TDIU claim has been raised by the record. Pursuant to the holding in Rice, a claim for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. The Board further notes that the TDIU claim is inextricably intertwined with the claim for an increased rating for PTSD. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Ongoing VA medical records should be obtained. See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Under 38 C.F.R. § 3.159(c)(2), efforts to obtain federal records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Finally, the Board notes there various addresses listed for the Veteran in the claims file. On the December 2015 VA Form 28-1900, the Veteran's address is listed as being located in North Carolina. In a November 2015 report of contact, the Veteran's address is listed as being located in Connecticut. In July 2015 the Veteran was sent notification from the Board that his claims file and appeal had been placed on the Board's docket, and was sent to a North Carolina address. This North Carolina address differs from the December 2015 North Carolina address. The notice of receipt of the claims file at the Board was returned as undeliverable as addressed later that month. On the July 2014 VA Form 9, the Veteran listed his Connecticut address. That said, there is a presumption of administrative regularity in VA processes, procedures, and mailings allowing the assumption that VA has properly discharged its duties and responsibilities. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (the "presumption of regularity" applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed they have properly discharged their official duties); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994). This presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). But this presumption is rebuttable, as an example when there is clear evidence of nondelivery (as confirmed by the U.S. Postal Service returning the letter as undeliverable) and if there is another address on file at which the appellant perhaps could be located. There are differing addresses listed as belonging to the Veteran. Based on the procedural aspects discussed above, the Veteran should be sent new notice regarding receipt of his appeal at the Board, notice regarding a claim for TDIU, and notice regarding the rescheduled VA examination. Notice should be sent to him, at his current address, in compliance with 38 C.F.R. §§ 19.76, 20.704(b) (2015). Documentation of the correspondence to the Veteran notifying him of the examination, and documentation as to whether the Veteran failed to report, if applicable, should be included in the claims file along with the dates of when each action was taken. Given that there are three addresses for the Veteran on file, an attempt to confirm his proper mailing address should also be made in order to ensure timely notice of the scheduled VA examination has been provided. The Board finds that a remand is necessary so that the agency of original jurisdiction can clarify the Veteran's address, provide appropriate notice, obtain outstanding treatment records, schedule a VA examination, and any additional development that is deemed necessary, on that aspect of the appeal. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to provide any updated information as to the Veteran's address and contact information so that future notices may be provided. DOCUMENT ALL EFFORTS to attempt to locate the Veteran. Contact information of record for the Veteran includes the following three addresses: 502 Bates Street Jacksonville, NC 28540 1155 Henderson Road Jacksonville, NC 28540. 2A Jeannette Street, Unit 2A Danbury, CT 06811 2. Following clarification of the Veteran's address, send the Veteran proper Veterans Claims Assistance Act (VCAA) notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 3. Obtain and associate with the Veteran's claims file all ongoing federal treatment records. All efforts to obtain VA records should be fully documented. The federal facility must provide a negative response if records are not available, and notice to the Veteran of the inability to obtain these records must comply with 38 C.F.R. § 3.159(e). 4. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. If any of the requested private records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. Allow the Veteran an appropriate amount of time to respond. 5. After any outstanding federal and private treatment records are associated with the claims file, schedule the Veteran for an examination to determine the extent of his PTSD. The entire claims file, to include a copy of this REMAND must be made available to the physician designated to examine the Veteran and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's service-connected conditions on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The rationale for any opinion offered should be provided. 6. After the development requested above has been completed, and after any additional development that is deemed appropriate, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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 2014). _________________________________________________ WAYNE M. BRAEUER 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).