Citation Nr: 1803010 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 14-22 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Entitlement to an evaluation in excess of 70 percent for dysthymic disorder (claimed as post-traumatic stress disorder). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from January 1965 to January 1968 and October 1970 to May 1972, including two deployments to the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that, in relevant part, increased the evaluation for the Veteran's dysthymic disorder to 70 percent effective September 10, 2013. The Veteran filed a Notice of Disagreement with this evaluation in March 2014. A Statement of the Case was issued in June 2014. The Veteran filed his Substantive Appeal in June 2014, and requested a videoconference hearing before a Veterans Law Judge (VLJ). In October 2017, the Veteran testified in a videoconference hearing before the undersigned VLJ. A written transcript of those proceedings has been associated with the electronic claims file. The Board notes that the Veteran provided testimony in October 2017 to suggest that his disability may render him unemployable. The claim of entitlement to a total disability evaluation based on individual unemployability (TDIU) was previously denied in a September 2005 rating decision. The Board views this testimony as a claim to reopen a previously denied claim of entitlement to TDIU benefits. This claim has not yet been adjudicated and is REFERRED to the RO for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. (CONTINUED ON NEXT PAGE) REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the Veteran's October 2017 hearing, he reported worsening of symptomatology attributed to his service-connected dysthymic disorder since his last VA examination. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). As such, a new VA examination is warranted to more accurately assess the severity of the Veteran's dysthymic disorder. The Board recognizes that the Veteran was last examined in 2016. Nonetheless, in light of his testimony and the current remand, an additional examination is warranted. There is also an indication from the evidence of record that the previous VA examination was based upon incomplete records. The Veteran reported receiving Social Security Disability Insurance, and, while a request for those records has been associated with the claims file, there is no formal finding regarding their availability. The duty to assist includes requesting information and records from the Social Security Administration which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996); see also 38 U.S.C.A. § 5103A (c)(3); 38 C.F.R. § 3.159(c)(2). Therefore, the Veteran's records regarding his Social Security benefits must be obtained, or a negative finding must be associated with the record. Additionally, the Veteran reported in his December 2013 VA examination that he sought regular mental health treatment from a VA Medical Center (VAMC). The Veteran reported continued treatment in his October 2017 hearing. However, the May 2016 VA examination does not reference records more recent than May 2013. Additionally, VAMC mental health treatment records have not been associated with the claims file since December 2013. As such, VA has notice of outstanding, relevant records from the VAMC sufficient to trigger the duty to assist. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA records are considered part of the record on appeal as they are in VA's constructive possession and may have bearing on the Veteran's claim). Finally, the Veteran has raised the issue of entitlement to TDIU in his October 2017 Board hearing. The Veteran provided a September 2017 statement from the Medical Director of his VAMC treatment program reporting that, due to the combination of the Veteran's medical and psychiatric problems, he has been rendered permanently unemployable. While the Veteran is not presently service-connected for all of the medical conditions listed by the Medical Director, the statement is certainly relevant to his TDIU claim. Resolution of this issue is intertwined with the development sought on remand and the determination regarding the severity of his service-connected dysthymic disorder. As such, it must also be readjudicated on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding private treatment records regarding his dysthymic disorder. If private providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the private treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. All attempts to obtain said records should be noted in the record. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination to determine the current nature and severity of his dysthymic disorder. The examiner must review the entire claims file, including a copy of this remand. Review of these documents should be noted in the claims file. The examiner should opine as to the present severity of the Veteran's dysthymic disorder, as well as provide an assessment of the functional impairment attributed to this disability. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any opinion provided cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. 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). _________________________________________________ B. MULLINS 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) (2017).