Citation Nr: 1614693 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 13-18 503A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected hypertension. 3. Entitlement to a total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran had active service from July 1981 to September 1992 and from February 2000 to October 2000, as well as service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision of the Atlanta, Georgia, Regional Office (RO), which continued a 30 percent disability rating for PTSD. During the course of the appeal, in a February 2013 rating decision, the RO increased the rating of the Veteran's PTSD to 50 percent. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During the course of the appeal, the Veteran's representative submitted a claim for TDIU in a July 2015 correspondence, stating that the Veteran could not work due to his service-connected PTSD. In light of the Court's holding in Rice, the Board has considered a TDIU claim as part of the Veteran's pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The Board notes that the Veteran was afforded the opportunity for a hearing in March 2016; however he did not attend the hearing and there is no indication that he or his attorney were not in receipt of notification of this hearing. This record in this matter consists solely of electronic claims files and has been reviewed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that his PTSD is more disabling than currently contemplated by his 50 percent rating. First, The Veteran should be sent a letter on how to substantiate a claim for TDIU. Second, the Veteran indicated that he received treatment at the Decatur/Atlanta VA Medical Center (VAMC) and the Columbus VAMC, therefore any outstanding or updated VAMC records should be associated with the claims file. Next, the Veteran has stated that he has received social security disability benefits since 2010. See May 2015 Disability Benefits Questionnaire. The duty to assist requires that VA make all necessary efforts to obtain all updated and relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). This includes records of the Social Security Administration (SSA), when deemed relevant to the issues on appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Therefore, the records must be obtained. 38 C.F.R. § 3.159(c)(2) (2015). The Veteran's electronic claims file also notes that the Veteran may have applied for vocational rehabilitation and thus he may have a vocational rehabilitation file. Given that the Veteran may have applied for or underwent vocational rehabilitation, these records are relevant to the issues on appeal, including his claim that his service-connected disabilities preclude him from working. Therefore, upon remand, any vocational rehabilitation files, or files related to a claim for vocational rehabilitation benefits should be obtained. Next, the Veteran was last evaluated by VA for compensation purposes in January 2012. The duty to assist does not require that a claim be remanded solely because of the passage of time if an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, since then, the Veteran has submitted a private opinion by a Dr. H. H.-G., and a vocational opinion, both of which may indicate worsening of symptoms. Therefore, upon remand, after attempts to obtain the above outstanding treatment records, the Veteran should be afforded a new examination that considers any updated treatment records, in order to determine the current nature and severity of the Veteran's service-connected PTSD. Finally, by rating decision in April 2013, the RO denied service connection for erectile dysfunction. The Veteran submitted a Notice of Disagreement with this decision in December 2013. The RO has not yet issued a Statement of the Case (SOC). As such, the RO is now required to send the Veteran an SOC as to this issue in accordance with 38 U.S.C.A. § 7105 (West 2014) and 38 C.F.R. §§ 19.29, 19.30 (2015). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that where a Notice of Disagreement has been submitted, the veteran is entitled to a Statement of the Case. The failure to issue a Statement of the Case is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). Accordingly, the case is REMANDED for the following actions: 1. Inform the Veteran concerning how he can substantiate his claim for an increased rating on the basis of TDIU. Request that he complete and return a TDIU claim form and then conduct any development that is warranted. 2. Obtain any updated VA treatment records and associated them with the claims file, specifically including any outstanding Atlanta/Decatur or Columbus VAMC treatment records. 3. Request, directly from the Social Security Administration, copies of any adjudication on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 4. Obtain any outstanding vocational rehabilitation files pertaining to the Veteran and associate them with the electronic claims file. 5. Then, after the foregoing development actions have been performed, the Veteran should be afforded a VA psychiatric examination to determine the current symptoms and severity of his service-connected PTSD. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of disability. The examiner must also provide an assessment of the Veteran's functional limitations due to PTSD, as they may relate to his ability to function in a work setting and to perform work tasks. The examiner should reconcile the symptoms of record with the symptoms or diagnoses found on examination to the extent possible including: The May 2015 letters from Dr. H. H.-G. and Dr. S.G.B. A complete rationale should be given for all opinions. 6. Issue an SOC to the Veteran and his representative on the issue of service connection for erectile dysfunction, to include as secondary to service-connected hypertension as required by 38 C.F.R. §§ 19.29-19.30 (2015) and Manlincon, 12 Vet. App. at 240. If, and only if, the appeal is perfected by a timely filed substantive appeal, should this issue be certified to the Board. 7. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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 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). _________________________________________________ K.J. ALIBRANDO 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).