Citation Nr: 1803373 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 07-37 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Christina A. Clark, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from March 2001 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In decisions dated in January 2011, July 2012, and September 2014, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Veteran testified a Decision Review Officer (DRO) hearing in February 2009. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. The Board notes that the Veteran appointed attorney Anthony D. Rufatto as his representative in February 2016. In January 2016, the Veteran was notified that his case had been certified to the Board. In December 2016, he submitted a new VA Form 21-22a for agent Christina A. Clark. In April 2017, the Board sent the Veteran a letter informing him that due to the fact that 90 days had passed from the date he was notified that his appeal was being transferred to the Board, he needed to file a motion to change his representation with the Board showing good cause for the change. 38 C.F.R. § 20.1304(b). The Veteran filed such a motion in June 2017. He explained that his previous representative left the practice of law in August 2016. He had to wait for Christina A. Clark, who had been assisting him with his appeal, to become an accredited agent before he could appoint her as his representative. Although Christina A. Clark notified him of her accreditation in September 2016, the Veteran forgot to complete a new VA Form 21-22a until December 2016 as a result of his severe attention and concentration problems. Finding that the Veteran had presented good cause, the Board granted the Veteran's motion to change his representation in December 2017. The Board notes that after the January 2015 supplemental statement of the case, the Veteran's representative submitted additional VA treatment records dated from January 2017 to August 2017. Although the representative did not submit a waiver of the AOJ's initial review of this additional evidence, the AOJ will have the opportunity to review these records upon remand. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In response to the September 2014 Board remand, the Veteran was provided with a VA examination related to his increased rating claim for PTSD in November 2014. During the examination, the Veteran reported that he had experienced panic attacks in the past, but he denied having any recent panic attacks. No problems with attention or concentration were documented by the examiner. In a subsequent August 2017 statement, the Veteran's representative indicated that he had recently been experiencing severe panic attacks in relation to employment as an Uber driver. In addition, the Veteran described having severe problems with attention and concentration in his June 2017 motion. As the record suggests that the Veteran's symptoms have worsened since the November 2014 VA examination, the Board finds that a remand is necessary to obtain a VA examination to ascertain the current severity and manifestations of the Veteran's PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As noted above, the Veteran's representative also submitted VA treatment records dated from January 2017 to August 2017. However, the most recent date from the VA treatment records previously of record was July 2014. Consequently, it is unclear whether there were any additional and relevant VA treatment records between July 2014 and January 2017. The Board therefore finds that the RO should attempt to obtain any such records upon remand. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (finding that documents which are generated by VA agents or employees are in the constructive possession of VA, and as such, should be obtained and included in the record). The Veteran's representative also reported that he recently filed for Social Security Administration (SSA) disability benefits. See August 2017 Statement. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant record from a Federal department or agency, including, but not limited to, records from Federal agencies such as SSA. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(2). As such, efforts must be made to obtain these records upon remand. The Board also finds that any decision with respect to the increased rating claim remanded herein may affect the Veteran's claims for a TDIU. Thus, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of these claims must be deferred until the appropriate actions concerning the Veteran's increased rating claim for his PTSD are completed and the matter is either resolved or prepared for appellate review. Regarding the Veteran's claim for a TDIU, the Board notes that the Veteran completed a Veteran's Application for Increased Compensation Based on Individual Unemployability, VA Form 21-8940, in October 2014. He reported that he last worked full-time in December 2007. The Veteran's representative later reported that he recently worked as an Uber driver. See August 2017 Statement. However, it is unclear how long the Veteran was employed in this role. As a result, the AOJ should request that the Veteran complete and return a new VA Form 21-8940 upon remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Social Security Administration (SSA) to obtain all records pertaining to any SSA disability claims filed by the Veteran. If the search for such records has negative results, the claims file must be properly documents as to the unavailability of those records. 2. Provide the Veteran with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability), and a VA Form 21-4198 (Request for Employment Information with Claim for Disability Benefits), and ask him to complete and return these forms. 3. The AOJ should request that the Veteran provide or identify medical records that are outstanding and relevant to his increased rating claim for PTSD, or his claim for a TDIU. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include treatment records from Veteran Health Indiana, dated since July 2014. 4. After completing the preceding development in paragraphs 1, 2, and 3, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).