Citation Nr: 1620053 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 14-11 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD), on a substitute basis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), on a substitute basis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969 and from July 1969 to September 1974. The Veteran died in May 2014, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran died prior to the promulgation of a decision by the Board on the appeal of his claims seeking an increased initial disability rating for PTSD and a TDIU. As a matter of law, appellants' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). The Veteran's appeal on the merits has become moot by virtue of his death. While this usually would result in his appeal being dismissed without prejudice, per 38 C.F.R. § 20.1302(a), in the present case, the Veteran submitted a VA Form 9 in March 2014 that perfected his appeal and including a request for a hearing before the Board. The request for a Board hearing remained pending at the time of his death. An August 2014 letter from the Agency of Original Jurisdiction (AOJ) notified the Veteran's surviving spouse of their decision regarding entitlement to dependency and indemnity compensation (DIC) and death pension benefits, and further stated that the Veteran had a claim pending at the time of his death, and that she is "considered a substitute claimant in place of the Veteran." Inasmuch as this represents as a grant of her prior request to substitute for the Veteran in his pending appeal, the Board heard testimony from the appellant in December 2015, and will proceed with adjudication of the appellant's substitute claims. See 38 C.F.R. § 20.1302(b)(2). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The appellant presented testimony at a hearing before the Board in December 2015. At that time, she indicated that the Veteran was being seen by both the Vet Center and by VA for mental health care. The most recent treatment records from the Southern Texas Health Care System (HCS) and the Vet Center in San Antonio, Texas date from December 2013 and April 2006, respectively. As a complete set of treatment records leading up to the Veteran's death is relevant to the present appeal, these VA and Vet Center records should be obtained. See 38 C.F.R. § 3.159(c); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Court of Appeals for Veterans Claims has held that, where VA has notice that a Veteran is receiving disability benefits from the Social Security Administration (SSA), and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits and the supporting medical documents on which the decision was based. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C.A. § 5103 when 'there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits'). In the present case, the Veteran had been awarded Social Security Disability Insurance (SSDI) in a May 2005 decision. While a "Notice of Decision," with the SSA Administrative Law Judge's reasoning has been provided by SSA and associated with the claims file, the medical records upon which such decision was based have not yet been obtained. Under the circumstances presented here, the AOJ should take action to ensure the Veteran's complete SSA records are procured and included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all of the Veteran's VA treatment records from December 2013 through May 2014 from the Southern Texas HCS and from the Vet Center in San Antonio, Texas from April 2006 through May 2014, and associate them with the file. All efforts to obtain such records must be fully documented and the VA facility must provide a negative response if no records are found. 2. Contact SSA and request a copy of the medical records upon which any disability determination for the Veteran, to include the May 2005 decision granting SSDI, was based. All requests and responses, positive and negative, should be associated with the Veteran's claims file, electronic or otherwise. If the records cannot be located, a formal finding of unavailability should be associated with the claims file, and the appellant should be notified. 3. After completing all of the above, conduct any additional development deemed necessary (to potentially include referring the file to an appropriate mental health professional for a medical opinion as to the evolving severity of the Veteran's PTSD, as well as its effect on his employability, particularly since the February 2012 VA examination until his death in May 2014) then readjudicate the appellant's claims for entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD and a TDIU, both on a substitute basis, in light of all additional evidence received. If any of the benefits sought on appeal are not granted, the appellant and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ MICHAEL MARTIN 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).