Citation Nr: 1632885 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 14-11 055A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), rated 50 percent disabling prior to March 27, 2007 and 70 percent disabling since that date. 2. Entitlement to a rating in excess of 20 percent for type II diabetes mellitus. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) for any period prior to July 25, 2014. REPRESENTATION Appellant represented by: Paul Kachevsky, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to March 1972. These matters initially came before the Board of Veterans' Appeals (Board) from February and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In the February 2013 decision, the RO denied entitlement to a rating in excess of 20 percent for type II diabetes mellitus and denied entitlement to a TDIU. In the July 2013 decision, the RO granted service connection for PTSD and assigned an initial 50 percent disability rating, effective from March 27, 2007. The Veteran testified before a Decision Review Officer (DRO) at a September 2014 hearing at the RO. A transcript of that hearing has been associated with the file. In November 2014, a DRO assigned an initial 70 percent disability rating for PTSD, effective from March 27, 2007. In September 2015, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2015). 38 U.S.C.A. § 7107 (a)(2) (West 2014). In October 2015, the Board assigned an effective date of February 9, 2004 for the grant of service connection for PTSD and remanded all other issues on appeal for further development. The RO implemented the Board's assignment of an effective date of February 9, 2004 for the grant of service connection for PTSD by way of a December 2015 rating decision. The RO assigned an initial 50 percent disability rating for PTSD during the period prior to March 27, 2007. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The evidence suggests that the Veteran's service-connected PTSD may have worsened since his last VA examination in November 2014. For example, a February 2015 VA attending/resident/student note indicates that the Veteran was experiencing a "worsening depressed mood" with suicidal ideation and "worsening PTSD [symptoms]." Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected psychiatric disability is triggered. Moreover, the Veteran's Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Board requested an opinion regarding the extent service-connected disability impacted employment prior to July 25, 2014. The February 2016 opinion suggested that the Veteran would not have been able to work during an inpatient admission in June 2014. There was no mention of the impact for any time earlier than June 2014. A March 2016 VA mental health note indicates that the Veteran was in receipt of Social Security Administration (SSA) supplemental security income (SSI) benefits. Where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Any medical records related to the SSA's determination have not yet been associated with the file and may be relevant to the issues on appeal. Updated VA treatment records should also be secured upon remand. Lastly, the issue of entitlement to a TDIU for any period prior to July 25, 2014 is inextricably intertwined with the issues of entitlement to a higher initial rating for PTSD and entitlement to an increased rating for diabetes mellitus. Hence, the Board will defer adjudication of the TDIU issue. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to report his education and employment history and earnings, especially for the period from February 9, 2004 through July 24, 2014. 2. Contact the Veteran and ask that he indicate whether he has ever been in receipt of SSA benefits based on disability (SSA disability and/or SSI benefits), as opposed to based solely upon age. If he fails to respond or responds in the affirmative, contact the SSA and obtain a copy of that agency's decision(s) concerning the Veteran's claim(s) for disability and/or SSI benefits, including any medical records relied upon to make the decision(s). All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. Obtain and associate with the file all outstanding VA records of the Veteran's treatment, to specifically include: (a) all records from the VA Medical Center in Providence, Rhode Island dated from April 2016 through the present; (b) all records from the VA Connecticut Healthcare System dated from March 2016 through the present; and (c) all such records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until they are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 4. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA psychiatric examination to assess the current severity of his service-connected PTSD. All indicated tests and studies shall be conducted. All relevant electronic records contained in the VBMS and Virtual VA systems, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner should report the nature and severity of all signs and symptoms of the Veteran's PTSD and fully describe the impact of the disability on his occupational and social functioning. The examiner should also specifically answer the following question: Does the Veteran's service-connected PTSD, by itself and without regard to any other disabilities, result in total occupational and/or social impairment? The examiner must provide reasons for each opinion given. 5. Return the claims file to the examiner who provided the February 2016 medical opinion. All relevant electronic records contained in VBMS and the Virtual VA system, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (PTSD, diabetes mellitus, erectile dysfunction, voiding dysfunction, bilateral peripheral neuropathy of the upper and lower extremities, and hearing loss) would, in combination or individually and without regard to any non service-connected disabilities, be sufficient to preclude him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him during any period prior to June 2014. The examiner must provide reasons for each opinion given. 6. If a full benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2015). 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). 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). _________________________________________________ THOMAS J. DANNAHER 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).