Citation Nr: 1805565 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-20 491A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder, NOS. 2. Entitlement to service connection for heart disease. 3. Entitlement to service connection for a heart attack. REPRESENTATION Appellant represented by: Michael J. Brown, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1986 to March 1987 and from February 2003 to April 2004. This matter comes to the Board of Veterans Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of an initial rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In the October 2017 hearing before the Board and on the record, the Veteran's representative stated that the Veteran wanted to withdraw the appeal of the AOJ denial of service connection for heart disease. 2. In the October 2017 hearing before the Board and on the record, the Veteran's representative stated that the Veteran wanted to withdraw the appeal of the AOJ denial of service connection for a heart attack. CONCLUSIONS OF LAW 1. The criteria for withdrawal of appeal as to the claim of entitlement to service connection for heart disease have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of appeal as to the claim of entitlement to service connection for a heart attack have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Heart Disease and Heart Attack - Appeals Withdrawn The Veteran submitted a notice of disagreement (NOD) on September 23, 2013, after receiving notice on September 28, 2012 of the August 2011 rating decision. A statement of the case (SOC) was issued in May 2014. The Veteran submitted a VA Form 9 in June 2014, perfecting the appeal of all issues listed in the SOC, the PTSD rating and the denial of service connection for heart disease and for a heart attack. In March 2016 and May 2016, a supplemental statement of the case (SSOC) was issued, listing the three issues. In June 2016, all three issues were certified to the Board. In the October 2017 hearing, the Veteran, through his representative, indicated his decision to withdraw the claims of entitlement to service connection for heart disease and for a heart attack. This constitutes a withdrawal of those appeals. See 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). Therefore, the appeals must be dismissed. ORDER The appeal as to denial of service connection for heart disease is dismissed. The appeal as to denial of service connection for a heart attack is dismissed. REMAND The Veteran contends that the symptoms of his service-connected PTSD are more severely disabling than reflected by the 50 percent rating currently assigned. After examining the record, the Board finds that the Veteran's claim for an increased rating for PTSD has not been completely developed. Thus, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The record indicates that the Veteran previously received treatment for his psychiatric disorder at the Philadelphia Vet Center and was treated by Dr. C., Ph.D. However, none of the Veteran's Vet Center records have been associated with the claims folder. A remand is therefore necessary to obtain those records. The Veteran underwent a VA examination regarding his PTSD in October 2010. The examination report indicates that the examiner reviewed the Veteran's file including notes written by his therapist, Dr. C, brought in by the Veteran. In November 2013, the Veteran submitted a request for reasonable accommodation. In December 2013, the National Reasonable Accommodation Coordinator approved his request in the EPA Determination of Disability. The decision indicates that a December 2013 letter from Dr. C, the Veteran's therapist, was taken into consideration. The Veteran underwent a VA examination for PTSD in February 2016. The report indicates that the Veteran was diagnosed with PTSD and unspecified depressive disorder and experienced occupational and social impairment with reduced reliability and productivity. The examiner opined that since his last evaluation, the Veteran had to change jobs due to his difficulty managing the stress and complexity of his previous job, noting that the Veteran's psychologist, Dr. C, wrote a detailed letter in support of this change, linking his difficulties to his PTSD symptoms. In the October 2017 hearing, the Veteran testified to difficulties at work and home due to his PTSD symptoms since returning from deployment. When testifying regarding his temper, the Veteran stated that he learned some techniques to manage his temper while working with his VA psychologist, Dr. C. The Veteran indicated that he was treated by Dr. C for a year and a half but was not currently being treated. The Veteran also indicated that around 2010 he saw a counselor at work who recommended that he go to the VA for treatment because she was not experienced in those matters. He noted that he did not spend much time with her but that he did speak with her about psychiatric issues. A letter received in December 2017 from Magellan Health Services, FOH EAP Consultant indicates that "at some point in 2012" the Veteran "came to one EAP session." The letter indicates that "at that point, he was being seen at the VA for counseling thus decided to continue there for his treatment." As discussed above, treatment with the Veteran's former VA therapist at the Vet Center was referenced in his VA examination, the Reasonable Accommodation Decision, in the October 2017 hearing, and in the December 2017 letter from the EAP consultant. While the Board notes that a letter received in February 2014, dated January 23, 2014, from Dr. C is of record, treatment records from the Vet Center are not associated with the record. The record indicates one attempt to obtain information from the Veteran regarding the Vet Center records, and it is unclear whether further attempts to obtain those records would be futile. Therefore, the Board finds that attempts to obtain those records must be made until it is determined that further attempts to obtain those records would be futile. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all treatment records from the Philadelphia Vet Center and associate those documents with the claims file. If those records are unavailable and the AOJ determines that further attempts to obtain those records would be futile, such should be noted in the claims file with a formal finding of unavailability and the Veteran and his representative should be so notified. If the Veteran fails to complete necessary authorizations, he may obtain and submit the records himself. 2. Thereafter, and after conducting any additional development that may be indicated following receipt of any records or other event, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs