Citation Nr: 1803994 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-16 987 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts 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 (TDIU) due to service-connected PTSD, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to May 1986, from August 2001 to April 2002, from September 2002 to September 2003, and from November 2009 to December 2010. He was awarded the Purple Heart. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2012 rating decision in which the RO, in Winston-Salem, North Carolina, inter alia, granted the Veteran's claim for service connection for PTSD and assigned an initial rating of 50 percent, effective December 27, 2010. In March 2013, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned for PTSD. A statement of the case (SOC) was issued in March 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2014. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Boston, Massachusetts, which certified the appeal to the Board. As the Veteran disagreed with the initial rating assigned following the award of service connection for PTSD, the Board has characterized that claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In November 2016, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the claims file. As explained in more detail, below, given the evidence of record suggesting that the Veteran may be unemployable due to his service-connected PTSD, the Board has expanded the appeal to include the matter of entitlement to a TDIU due to that disability, to include on an extra-schedular basis. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. First addressing characterization of the appeal to include a TDIU claim, the Board notes that, in Rice, 22 Vet. App. at 453-54, the United States Court of Appeals for Veterans Claims held that a claim for a TDIU is considered a component of a higher rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, during the November 2016 Board hearing, the Veteran asserted that he had not worked since September 2016 and submitted a November 2016 letter from his VA psychiatrist stating that he was unable to work due to his PTSD. In addition, in December 2016, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, asserting that his service-connected PTSD prevented him from securing or following any substantially gainful occupation. Therefore, the Board finds that the matter of entitlement to a TDIU due to PTSD has been raised in the context of the Veteran's claim for a higher initial rating for PTSD. See Id. at 447. However, as the AOJ has not specifically adjudicated this matter, after accomplishing the additional actions noted below, the AOJ must address this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Board notes that because the 50 percent rating currently assigned for PTSD does not meet the percentage requirement of 38 C.F.R. § 4.16(a) for award of a schedular TDIU, the Board has characterized this matter to include extra-schedular consideration, pursuant to 38 C.F.R. § 4.16(b). Regarding the claim for a higher initial rating for PTSD, after the issuance of the March 2014 SOC, and following certification of the appeal to the Board, pertinent, additional evidence has been added to the record. Specifically, the Veteran underwent a VA PTSD examination in January 2017, and the report of that examination has since been associated with the claims file. In addition, VA mental health treatment records were associated with the claims file. Moreover, the Veteran submitted short-term disability/employment records, which included psychiatric records and letters from his VA psychiatrist, as well as a PTSD Disability Benefits Questionnaire from a private doctor. This evidence has not been considered by the AOJ in conjunction with the claim for a higher initial rating for PTSD. Also, while some of the records submitted by the Veteran were accompanied by a waiver of initial AOJ consideration of the evidence, some of these records, as well as the VA treatment records and the VA PTSD examination report were not. See 38 C.F.R. § 20.1304(c) (2017); Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant's waiver). Yet, regarding the evidence submitted by the Veteran without a waiver of initial AOJ consideration of the evidence, in cases such as this where the Veteran filed his substantive appeal after February 2, 2013, and neither the Veteran nor his representative has specifically requested initial AOJ consideration of the evidence, such waiver is presumed. See 38 U.S.C. § 7105(e) (2012) (as amended by Pub. L. No. 112-154, § 501 (Aug. 6, 2012)) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). However, with regard to the VA PTSD examination report and the VA mental health treatment records, this evidence was not submitted by the Veteran or his representative, but rather, it was generated and added to the claims file by the VA. Thus, the automatic waiver provision of 38 U.S.C. § 7105(e) does not apply in this case. See 38 U.S.C. § 7105(e) (providing for initial review by the Board "if the claimant or the claimant's representative . . . submits evidence") (emphasis added). Under these circumstances, the Board has no alternative but to remand the claim for a higher initial rating for PTSD to the AOJ for consideration of the evidence, in the first instance, and for issuance of a supplemental SOC (SSOC) reflecting such consideration. While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Northampton VA Medical Center (VAMC) in Leeds, Massachusetts, and that records from those facilities dated through March 2017 are associated with the file; however, more recent records may exist. In addition, the Veteran has indicated that he received treatment for his PTSD at the Springfield Vet Center in Springfield, Massachusetts. A review of the claims file reveals that a November 2011 summary letter of the Veteran's treatment from the Springfield Vet Center was obtained. However, the actual treatment records from that Vet Center were not. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain all pertinent, outstanding records of evaluation and/or treatment of the Veteran from the Northampton VAMC since March 2017 and from the Springfield Vet Center (if any) following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2017) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. The AOJ's adjudication of the claims should include consideration of all evidence added to the claims file since the last adjudication (to particularly include the January 2017 VA PTSD examination report and VA mental health treatment records) and whether "staged rating" of the Veteran's PTSD-assignment of different ratings for distinct periods of time, based on the facts found-is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Northampton VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since March 2017. Follow the procedures of 38 C.F.R. § 3.159 as regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Request complete records from the Springfield Vet Center. Follow the procedures set forth in 38 C.F.R. § 3.159 as regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication (to particularly include the January 2017 VA PTSD examination report and VA mental health treatment records)) and legal authority (to include consideration of whether "staged rating" of the disability is appropriate). 7. If any full benefit sought on appeal remains denied, furnish to the Veteran and his representative a SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).