Citation Nr: 18141211 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 13-30 487 DATE: October 10, 2018 REMANDED Entitlement to service connection for thoracolumbar spine disorder with radiculopathy affecting the left lower extremity is remanded. Entitlement to an initial rating higher than 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1988 to June 1992 and again from November 2001 to February 2002. 1. Entitlement to service connection for thoracolumbar spine disorder with radiculopathy affecting the left lower extremity is remanded. At the February 2017 Board hearing, the Veteran testified that after his first period of service, he received treatment for a low back disability from a facility in Kansas. See Board Hearing Transcript, pp. 20-22. The Board overlooked this aspect of the testimony in the last remand. As these records are relevant to the appeal, the case is again remanded to ask the Veteran to complete a VA Form 21-4142 for any and all physicians and facilities in which he received treatment for his low back disability since June of 1992, the date he was discharged from his first period of active duty, until present day. Upon receipt of the completed form, make two requests for the authorized records from the listed physicians and/or facilities, unless it is clear after the first request that a second request would be futile. 2. Entitlement to an initial rating higher than 50 percent for service-connected PTSD is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. During the February 2017 Board hearing, the Veteran reported that he was treated for PTSD at the Vet Center in Parkersburg, West Virginia and has continued to receive VA treatment for the disability on appeal. See Board Transcript, p. 5. Notably, Vet Center records are deemed in the constructive possession of VA. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.) for determining that Vet Center records are generated by VA agents or employees which are deemed within the Secretary’s control and, thus, are deemed constructively of record). The RO requested the Veteran to return an authorization form for these records, and the Veteran did not respond. The record does not reflect that the Vet Center, which again is affiliated with VA, requires an authorization form to release records. This issue must be remanded in an attempt to obtain records directly from the Vet Center. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. 3. Entitlement to TDIU is remanded. Finally, because a decision on the Veteran’s spine and PTSD could significantly impact a decision on the issue entitlement to TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any physicians or facilities in which the Veteran received treatment for his low back disability since his discharge from active duty in June 1992. Make two requests for the authorized records from the physicians and/or facilities unless it is clear after the first request that a second request would be futile. 2. Make a direct request for records with the Vet Center in Parkersburg, West Virginia to secure all treatment records relevant to the Veteran’s treatment for PTSD. If the Vet Center requires an authorization form to obtain records, notify the Veteran of this requirement and provide him an authorization form for him to return to authorize release of these records. 3. Readjudicate the claims on appeal. If the claims are not granted to the Veteran’s satisfaction, provide him and his representative a Supplemental Statement of the Case and allow them the appropriate time to respond before returning the appeal to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel