Citation Nr: 1804251 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-08 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for colon cancer. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for intestinal cancer. 3. Whether new and material evidence has been received to reopen a claim for compensation benefits for additional disability under the provisions of 38 U.S.C. § 1151, relating to treatment at a Department of Veterans Affairs facility in 1999. 4. Entitlement to service connection for prostate cancer. 5. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Scott E. Schermerhorn, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran had active service from August 1968 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2009, July 2009, and May 2014 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for colon cancer, intestinal cancer, and prostate cancer; compensation benefits under the provisions of 38 U.S.C. § 1151, relating to treatment at a VA facility in 1999; an increased rating for PTSD; as well as entitlement to a TDIU. Unfortunately, the Board finds that these claims must be remanded for additional development before they can be adjudicated on the merits. With respect to all claims, the record indicates that there are outstanding VA treatment records which have not been associated with the claims file. The Veteran has testified at his May 2017 hearing that he receives regular treatment at the Lebanon VA Medical Center in Lebanon, Pennsylvania. However, the most recent VA treatment records associated with the claims file are dated in September 2015, over two years ago. In addition, the Veteran testified that he had been hospitalized in Pittsburgh, Pennsylvania, in approximately November 2016, the records of which are also not associated with the claims file. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (b) (West 2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Therefore, the Board finds that the RO must associate with the record any and all outstanding VA and private treatment records. In addition, with respect to the claims of entitlement to an increased rating for PTSD and entitlement to a TDIU, the Veteran was last provided with a VA psychiatric examination in September 2015. Evidence associated with the claims file since that time suggests that the Veteran's psychiatric symptomatology may have worsened since the most recent examination. For instance, at his May 2017 Board hearing, the Veteran testified that he experienced memory problems, difficulty gathering thoughts and forming sentenced, and that he lived alone in a "bunker" in his basement separate from his wife. Generally, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Veteran should be scheduled for another VA examination to assess the nature and severity of his service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all dates and providers of VA and/or private medical treatment for the disabilities at issue since 2015, as well as authorization for VA to obtain such records as needed. Obtain and associate with the record all such identified outstanding VA and/or private treatment records for the Veteran, specifically including records dating from September 2015 to the present from the Lebanon VA Medical Center in Lebanon, Pennsylvania, and records of hospitalization in Pittsburgh, Pennsylvania, in approximately November 2016. All actions to obtain the requested records should be documented fully in the claims file. If any records cannot be located or no such records exist, then the Veteran and his attorney should be so notified, and the unavailability of the records should be noted in the claims file. 2. Schedule the Veteran for a VA psychiatric examination to assess the current nature and severity of his service-connected PTSD. The claims file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings, to include functional impairment, should be reported in detail in accordance with VA rating criteria. The examiner should also address the functional effects that the Veteran's service-connected PTSD have on his ability to secure or follow a substantially gainful occupation. 3. Notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without a showing of good cause may include denial of one or more of his claims. See 38 C.F.R. §§ 3.158, 3.655 (2017). 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit remains denied, then a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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). _________________________________________________ U. R. POWELL 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).