Citation Nr: 18158204 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-19 859 DATE: December 14, 2018 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to nonservice-connected pension is remanded. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Additional records must be obtained on remand. Of record is a December 2012 letter from a Vet Center counselor discussing the Veteran’s mental health symptoms; however, no Vet Center treatment records have been added to the Veteran’s claims file. Also VA treatment records appear incomplete. There are some records form 2011 and some from 2013 and February 2014 and then a gap until some notices of outside treatment in 2016 and 2017. A November 2015 PTSD disability benefits questionnaire completed by a private provider indicates that the Veteran reported she sees a VA psychiatrist every month and a therapist twice a week. On remand, all relevant treatment records, from the appropriate VA medical center and Vet Center, must be obtained. See 38 U.S.C. § 5103A(c) (2012). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In addition, the November 2015 PTSD disability benefits questionnaire indicates that the Veteran reported she has been in receipt of Social Security disability benefits since 2011 for her physical and mental difficulties. No Social Security records have been associated with the Veteran’s claims folder. When VA is put on notice of the existence of potentially relevant SSA records, VA must try and obtain these records before deciding the appeal as part of the duty to assist. See 38 C.F.R. § 3.159(c)(2) and (3) (2017); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370- 372 (1992). 2. Entitlement to service connection for a back disability is remanded. A new, adequate VA opinion is needed with respect to the Veteran’s back claim. The Veteran has contended she has a back disability as a result of a fall in service. In her January 2013 notice of disagreement she described falling from a maintenance stand. She stated that she laid low for two weeks in pain before she insisted she needed medical treatment. In June 2013 the Veteran was afforded a VA examination, at which the examiner diagnosed degenerative disc disease. The examiner noted the Veteran’s report of falling off an airplane wing in service, but stated that the record contained no documentation of such a fall. The examiner also noted that the Veteran’s entrance and separation physical examinations were not reviewed. The examiner stated that the Veteran’s service treatment records contained only one complaint of back pain diagnosed as muscle strain. Further, the examiner stated there were no post-service medical records indicating back pain until 2008. The Board finds that the record contains relevant documentation not considered by the VA examiner, leading to the examiner’s reliance on an inaccurate factual predicate. Notably, an August 1988 service treatment record states that the Veteran sought treatment for a sore midback. She reported having pain for the past six weeks, reporting that approximately eight weeks prior she had fallen 10 feet from a maintenance stand. She was assessed with a thoracic strain. Imaging of the thoracic spine showed no significant abnormalities. In August 1990 she sought treatment for low back pain and was assessed with having a muscle strain. In May 1992 she reported muscle spasms in her low back, anterior thighs, and hip area. At a January 1989 medical examination in service the Veteran was noted to have scoliosis. A note on her accompanying report of medical history on which she indicated recurrent back pain, states that the Veteran cannot sit up straight because of back pain caused by scoliosis, but can sit with a slight hunch. No spine abnormality is noted on her January 1993 separation medical examination and her accompanying report of medical history does not indicate recurrent back pain. Post-service treatment records include documentation of a cervical spinal cord stimulator placement in September 2008. A December 2008 followup report notes that the Veteran has had back pain for many years and has had multiple hospitalizations for her back going out, the last one in 2002. The record notes that a 2007 MRI showed minimal disc herniation at L5-S1. On remand, the Veteran should be afforded a new VA examination of her back. The examiner should ensure review of the entire claims file, including the relevant evidence outlined above, and she opine whether it is at least as likely as not that the Veteran’s current back disability is related to her service, to include the fall she has described and is noted in her service treatment records. 3. Entitlement to TDIU and nonservice-connected pension are remanded. The Veteran has contended that she is unemployable as a result of her service-connected PTSD. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The RO has adjudicated a claim for nonservice-connected pension, but has not adjudicate a claim for TDIU. On remand, the Veteran’s TDIU claim should be developed as necessary and adjudicated in the first instance. Both the claims for entitlement to TDIU and nonservice-connected pension are intertwined with the Veteran’s other remanded claims. The matters are REMANDED for the following action: 1. Provide the Veteran a VA Form 21-8940 to enable her to file a formal application for a TDIU. 2. Contact the Social Security Administration and obtain a complete copy of any adjudication and the records underlying any adjudication for disability benefits. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 3. Obtain the Veteran’s complete VA treatment records since July 2011, as well as all records from the Vet Center. 4. Afford the Veteran a new VA examination of her back. The examiner should ensure review of the entire claims file including the relevant evidence outlined above, and she opine whether it is at least as likely as not that the Veteran’s current back disability is related to her service, to include the fall she has described and is noted in her service treatment records. 5. Thereafter, readjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen