Citation Nr: 1624772 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 13-18 735A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from August 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for PTSD and assigned an initial rating of 30 percent, effective March 26, 2009. The Veteran subsequently appealed with respect to the propriety of the initially assigned rating. Jurisdiction over his file is currently with the RO in Baltimore, Maryland. During the course of the appeal, in a May 2013 rating decision, the RO increased the evaluation of PTSD to 50 percent, effective March 26, 2009. This rating does not represent the maximum disability rating assignable for this disability, and the Veteran testified at the Board hearing that he is not satisfied with the 50 percent rating assigned. As higher ratings are available, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). The Veteran and his spouse testified before the undersigned Veterans Law Judge in a hearing in Washington, DC, in April 2016. A transcript of the hearing has been associated with the record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the May 2013 statement of the case. 38 C.F.R. § 20.1304(c) (2015). Therefore, the Board may properly consider such newly associated evidence. However, subsequent to the hearing, an April 2016 Disability Benefits Questionnaire (DBQ) referable to the Veteran's PTSD was associated with the record. While the Veteran did not waive AOJ consideration of such evidence, as his case is being remanded, the AOJ will have an opportunity to review the DBQ such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The issue of entitlement to a TDIU was raised by the Veteran at the Board hearing as a component of the initial rating claim on appeal. See Board Hr'g Tr. 3, 4, 12, 14. In this regard, he testified that he retired early due to his PTSD symptoms. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal was processed using the Virtual VA and Virtual Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In this regard, the Board finds that the Veteran's initial rating claim must be remanded to obtain outstanding VA and private (non-VA) medical records identified by the Veteran at the Board hearing, and his TDIU claim must be remanded in order to for the AOJ to develop and adjudicate it in the first instance. With regard to the VA records, the Veteran testified that he had treatment at the Perry Point VA Medical Center and the Elkton Vet Center. See Board Hr'g Tr. 6, 18. These records must be obtained. (He testified that he went to a VA medical center in Elsmere in the 1980s for an Agent Orange Registry examination. Currently, this evidence is already of record.) With regard to the private treatment, the Veteran testified that he had treatment at the Rockford Center. At present, the claims file includes records from that facility related to admissions in February 2009 and March 2009. To the extent there remain further records from that facility, the Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf. The Veteran also testified that he had a private counselor after being discharged from the Rockford Center. See Board Hr'g Tr. 18-19. He also stated that he had a private primary care provider, Dr. Cadell, with whom he talked about his PTSD symptoms and who referred him for psychiatric evaluations. See Board Hr'g Tr. 4, 18. Because those private records are potentially relevant, the Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf. Finally, as noted in the Introduction, a TDIU claim has been raised by the Veteran at his April 2016 hearing and is before the Board as a component of his claim for a higher initial rating for his PTSD and is inextricably intertwined with such matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Furthermore, while on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU and be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Finally, after conducting any indicated development, the AOJ should adjudicate the Veteran's TDIU claim in the first instance. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims, to specifically include treatment at Rockford Center, a private counselor, and his primary care provider (Dr. Cadell). Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain relevant VA treatment records from Perry Point VA Medical Center and Elkton Vet Center. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completing the above, and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ A. JAEGER 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).