Citation Nr: 18119707 Decision Date: 07/19/18 Archive Date: 07/19/18 DOCKET NO. 12-15 973 DATE: July 19, 2018 ORDER Referral for extraschedular consideration under 38 C.F.R. § 3.321(b) for the combined effect of the Veteran’s service-connected disabilities is denied. An effective date of December 9, 2002, but no earlier, is established for the award of an increased 40 percent rating for hepatitis C, subject to governing criteria applicable to the payment of monetary benefits. An effective date of December 9, 2002, but no earlier, is established for the award of an increased 60 percent rating for coronary artery disease (CAD), subject to governing criteria applicable to the payment of monetary benefits. An effective date of December 9, 2002, but no earlier, is established for the award of a total disability rating based upon individual unemployability (TDIU), subject to governing criteria applicable to the payment of monetary benefits. An effective date of December 9, 2002, but no earlier, is established for the award of an increased 60 percent rating for CAD, subject to governing criteria applicable to the payment of monetary benefits. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted. REMANDED Entitlement to special monthly compensation (SMC) based on housebound status is remanded. Entitlement to an initial rating in excess of 70 percent for major depression, claimed as posttraumatic stress disorder (PTSD), to include consideration of entitlement to a separate compensable rating for PTSD, is remanded. Entitlement to a disability rating in excess of 40 percent for posttraumatic discectomy and arthralgia of the lumbosacral spine is remanded. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for hypertension is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. In December 2017, VA amended 38 C.F.R. § 3.321 to clarify that an extraschedular evaluation may not be based on the combined effect of more than one service-connected disability; as the appellant’s claim was pending before VA on January 8, 2017, the final rule applies to this appeal. 2. The Veteran first filed an original claim for service-connection for hepatitis C on December 9, 2002; the Board’s January 2015 decision implicitly determined that the March 2004 rating decision was non-final with respect to the initial rating assigned for hepatitis C and awarded a 40 percent rating “throughout the entire claims period.” 3. Throughout the appeal period dating back to the date of the original claim for service-connection on December 9, 2002, the Veteran’s CAD more nearly approximated the criteria for a 60 percent rating. 4. Resolving doubt in the appellant’s favor, from December 9, 2002, the Veteran’s service-connected disabilities prevented him from securing or following substantially gainful employment, which, in turn, resulted in a total service-connected disability. 5. Prior to December 9, 2002, service connection was not established for any disability. 6. Prior to his death, the evidence established that the Veteran required regular aid and attendance of another person due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Referral for an extraschedular rating for the combined effect of the Veteran’s service-connected disabilities 38 C.F.R. § 3.321(b) is not warranted. 82 Fed. Reg. 57,830 (Dec. 8. 2017). 2. The criteria for an effective date of December 9, 2002, but no earlier, for the award of a 40 percent rating for hepatitis C have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2017); January 2015 Board decision. 3. The criteria for an effective date of December 9, 2002, but no earlier, for the award of a 60 percent rating for CAD have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156(b), 3.157, 3.400; 38 C.F.R. § 4.104 (Diagnostic Code 7005) (2017). 4. The criteria for an effective date of December 9, 2002, but no earlier, for the award of TDIU have been met. 38 U.S.C. § 5110 (2012); 3.400; 38 C.F.R. § 4.16 (2017). 5. The criteria for an effective date of December 9, 2002, but no earlier, for the award of DEA have been met. 38 U.S.C. § 5110 (2012); 3.400; 38 C.F.R. § 4.16 (2017). 6. The criteria for special monthly compensation for being in need of aid and attendance of another under 38 U.S.C. § 1114(l) have been met. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 May 1975; he died in February 2013. The appellant in this case is the Veteran’s surviving spouse who has been properly substituted for the Veteran in accordance with the Veterans’ Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating a new 38 U.S.C. § 5121A allowing substitution in the case of the death of a claimant who dies on or after October 10, 2008); 79 Fed. Reg. 52977 (September 5, 2014) (now codified at 38 C.F.R. § 3.1010) (2017)); January 2015 Board decision (recognizing valid substitution of the appellant). A portion of this appeal was previously before the Board in January 2015. In the January 2015 decision, the Board, which remanded and referred the Veteran’s low back disability claim for extraschedular consideration, found that the combined impact of his service-connected disabilities did not warrant referral for the same consideration. The Veteran appealed to the U.S. Court of Appeals for Veteran Claims (CAVC or Court), and the Court issued a Memorandum Decision that vacated only that part of the January 16, 2015, Board decision declining referral for extraschedular consideration for the combined effect of the Veteran’s service-connected disabilities, remanding this particular matter for readjudication. Accordingly, the Board has included the limited issue of whether the combined effect of the Veteran’s service-connected disabilities warrants referral for extraschedular consideration under 38 C.F.R. § 3.321(b) on the first page of this decision. Additionally, in its Memorandum Decision, the Court stated that “the appellant has failed to carry her burden of persuasion that the matters of the effective date for hepatitis C, CAD, SVT, and TDIU were before the Board at the time of its decision,” finding that although “at the time of the Board’s January 2015 decision, the matters of the effective dates for these claims were at the RO,” pointing to the issuance of a March 2015 supplemental statement of the case by the RO. January 2015 Memorandum Decision (emphasis added). However, the Board notes that supraventricular tachycardia (SVT) was not an earlier effective date issue addressed in the RO’s March 2015 supplemental statement of the case; rather, the effective date for the award of DEA was addressed. See March 2015 supplemental statement of the case (only addressing the earlier effective date issues pertaining to increases for hepatitis C, CAD, TDIU, and DEA (not SVT)); see also June 2012 notice of disagreements of effective dates (making no mention of SVT). Therefore, it appears that the reference to a pending appeal for an earlier effective date for SVC as was merely a typographical error within Memorandum Decision. It is noted that the earlier effective date issues for the increased evaluations for hepatitis C, CAD, TDIU, and DEA that were addressed in the March 2015 supplemental statement of the case were recently certified to the Board and, thus, are now within the Board’s jurisdiction. Accordingly, they are now also included on the first page of this decision. With respect to the earlier effective date claim for hepatitis C, however, the Board has slightly recharacterized this issue because the increased rating for hepatitis (previously rated 20 percent disabling from September 1, 2006), for which the earlier effective date was initially sought, has now been increased to 40 percent from September 1, 2006. See January 2015 Board decision (granting an increase to 40 percent for hepatitis C “throughout the claims period”); March 2015 rating decision (effectuating the 40 percent increase for hepatitis C, effective September 1, 2006). Following the Board January 2015 decision and remand, the appellant also perfected an appeal with respect to issues of entitlement to an increased rating for major depression, entitlement to service connection for hypertension, and entitlement to SMC. See January 2014 Board decision (remanding these issues for issuance of statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999)). Thus, these issues are likewise now included on the first page of this decision. As a final introductory matter, the Board notes that, in May 2017, the appellant’s representative requested an extension of 60 days “in which to submit medical records and argument in support of her current appeal to the Board.” The Board responded to this request in December 2017, granting the motion for a 60-day extension from the date of the December 2017 letter, and additional argument was provided in conjunction with the appeal recently in June 2018. Extraschedular Referral for Combined Effect of Disabilities 1. Whether the combined effect of the Veteran’s service-connected disabilities warrants referral for extraschedular consideration under 38 C.F.R. § 3.321(b) On April 2016, VA published in the Federal Register a proposed rule to amend its regulation at 38 C.F.R. 3.321(b)(1) to clarify its longstanding interpretation that the regulation provides an extra-schedular evaluation for a single service-connected disability, and not for the combined effect of two or more service-connected disabilities. 81 Fed. Reg. 23,228 (Apr. 20, 2016). Thereafter, in December 2017, VA published a final rule amending 38 C.F.R. § 3.321 to clarify that an extraschedular evaluation may not be based on the combined effect of more than one service-connected disability; the provisions of that final rule apply to all applications for benefits that are received by VA on or after January 8, 2018, or that are pending before VA, the U.S. Court of Appeals for Veterans Claims, or the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018. See 82 Fed. Reg. 57,830 (Dec. 8. 2017). Because this appeal was pending before VA on January 8, 2018, as it had been remanded to the Board pursuant to the Court’s January 2017 Memorandum Decision, the clarifying amendment applies in this case. There is no legal basis upon which to award an extraschedular rating for the combined effect of the Veteran’s service-connected disabilities 38 C.F.R. § 3.321(b). It follows, therefore, that referral for such consideration by the Director of the Compensation Service, or his or her delegate, of the combined effect is unwarranted and must be denied. Earlier Effective Dates 2. Entitlement to an effective date earlier than September 1, 2006, for the award of an increased rating for hepatitis C (initially claimed as an effective date earlier than September 1, 2006, for the award of a 20 percent rating for hepatitis C, which is now currently rated as 40 percent disabling effective September 1, 2006) The Veteran filed an original claim for service connection for hepatitis C on December 9, 2002. A March 2004 rating decision awarded service connection, assigning a 0 percent (noncompensable) evaluation, “effective December 9, 2002, date of claim.” The Veteran disagreed with the initial rating assigned, and a statement of the case was issued in August 2007, but the Veteran did not submit a formal substantive appeal in response thereto. The Board, in its previous January 2015 decision, took jurisdiction over the appellate issue of “[e]ntitlement to an increased rating for hepatitis C infection, rated as noncompensably disabling prior to September 1, 2006, and 20 percent disabling thereafter.” January 2015 Board decision, p. 1 (emphasis added). In its decision to award an “increased rating of 40 percent, but not higher, is warranted for the Veteran’s hepatitis C infection throughout the entire claims period,” the Board cited relied upon “VA treatment records dating from 2005 to the Veteran’s death in February 2013 document symptoms of hepatitis that most nearly approximate daily fatigue, malaise, and anorexia with minor weight loss and hepatomegaly.” Id. at p. 6, 9 (emphasis added). Given the Board’s jurisdiction over the time period of appeal prior to September 1, 2006, when he was initially rated non-compensably, along with references to evidence found in 2005 VA treatment records, it must be concluded that the Board made an implicit finding that the March 2004 rating decision was rendered non-final, either by the submission of new and material evidence within one year pursuant to 38 C.F.R. § 3.156(b), or otherwise interpreting evidence and argument as an informal appeal to the statement of the case issued in December 2004. In the absence of a vacatur or other determination rendering this portion of the January 2015 Board decision non-final, the Board is bound by its implicit prior favorable finding, and therefore herein explicitly determines that an earlier effective date of December 9, 2002, is established for the higher initial rating of 40 percent for hepatitis C. It is significant to note that the Board has jurisdiction over the sole issue of entitlement to an earlier effective date for the award of the increased rating for hepatitis C. As the Veteran did not file a notice of disagreement and perfect an appeal with regard to that portion of the March 2004 rating decision that established an effective date of December 9, 2002, for the award of service connection for hepatitis C, and no new and material evidence was submitted within one year of this decision speaking to the effective date of the award of service connection, there is no legal basis for the Board to take jurisdiction over the issue of entitlement to effective date earlier than December 9, 2002, for the award of service connection for hepatitis C. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). Thus, to the extent the appellant’s representative noted that the supplemental statement of the case of March 2015 addressed the issue of the effective date of the date of service connection for hepatitis C, even assuming arguendo that it did, this is irrelevant due to the fact that the April 2006 notice of disagreement failed to communicate a disagreement with the effective date of service connection established for this issue. See also December 2004 RO letter (The only issues that are currently on appeal are posttraumatic diskectomy and arthralgia, lumbosacral spine and Hepatitis C) and contemporaneous statement of the case (only addressing the initial ratings for the back and hepatitis). In sum, as December 9, 2002, is the date that service connection was established for this disability, the effective date for the award of an increase for hepatitis C cannot precede this date as a matter of law. 3. Entitlement to an effective date earlier than September 1, 2006, for the award of 60 percent for CAD The Veteran filed an original claim for service connection for a cardiovascular disorder on December 9, 2002. A March 2004 rating decision awarded service connection for CAD, assigning a 0 percent (noncompensable) evaluation, “effective December 9, 2002, date of claim.” Although the Veteran did not submit a notice of disagreement with the initial evaluation assigned, new and material evidence was submitted within one year of the decision, rendering the non-compensable evaluation assigned non-final. 38 C.F.R. § 3.156(b); see April 2004 statement (“I have had to deal with... worsening heart problems. Due to multiple back injuries... and a weakened heart have disabled me to the point of where I cannot perform any type of work for any length of time. I was awarded 100% Social Security Disability in 1995 due to my back and heart conditions.”). Significantly, the RO did not respond to this additional evidence until it processed the Veteran’s subsequent September 1, 2006 claim for an increase. Eventually, in April 2012, the RO awarded a 60 percent rating for CAD, “from September 1, 2006, the date of receipt of claim.” Because the Veteran filed a timely notice of disagreement with the April 2012 rating decision that established the effective date for the award of a 60 percent rating for CAD and perfected his appeal, the Board properly has jurisdiction over this effective date issue for the increased rating assigned. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). Because the initial non-compensable evaluation assigned in the March 2004 rating decision is rendered non-final, it is hereby determined by the Board that that December 9, 2002, is the date of receipt of the claim for purposes of assigning an effective date for the rating assigned. Accordingly, the Board is obliged to review the evidence of record to determine whether the criteria for a 60 percent rating for CAD were met at this time. To be eligible for a 60 percent rating under the applicable Diagnostic Code 7005, a 60 percent rating is warranted for the following: more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs, but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104. Turning to the April 2012 rating decision and corresponding statement of the case of the RO that assigned the 60 percent rating, the RO relied on the following evidence relevant during the pertinent time period prior to 2006: Records from the Cardiology, P.C., show in September 2001 showed ejection fraction of 63 percent.... Records from Princeton Baptist Medical Center show in June 1998 you were treated for chest pain. In November 1998 you were hospitalized for unstable angina due to coronary artery disease. Stent was placed. In May 2005 you underwent coronary artery bypass graft. Records from Dr. Bouchard show in... July 2005, records show coronary artery disease status post coronary artery bypass graft times 3 and status post stent. Although the February 2004 VA examination report noted that the Veteran was “asymptomatic and he is not on medications,” no information was provided regarding his METs or his claimed inability to work due to, in part, his heart. METs were also not evaluated on the April 2003 VA examination report that diagnosed “[c]oronary artery disease with stents placed on two occasions, clinically stable with normal left ventricular function.” Because the first VA examination to provide METs for the Veteran’s cardiovascular symptoms, including chest pain, is the VA examination dated November 17, 2006, which estimated METs were more than 3 up to 5, the Board resolves doubt in the appellant’s favor and finds that the Veteran’s CAD symptoms he consistently reported throughout the appeal period are sufficient to establish a 60 percent rating for CAD back to December 9, 2002, when his original claim for benefits was received. Once again, the Board has jurisdiction over the sole issue of entitlement to an earlier effective date for the award of the increased rating for CAD because the Veteran did not file a notice of disagreement and perfect an appeal with regard to that portion of the March 2004 rating decision that established an effective date of December 9, 2002, for the award of service connection for CAD, and no new and material evidence was submitted within one year of this decision speaking to the effective date of the award of service connection. Thus, there is no legal basis for the Board to take jurisdiction over the issue of entitlement to effective date earlier than December 9, 2002, for the award of service connection for CAD per Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). As December 9, 2002, is the date that service connection was established for this disability, the effective date for the award of an increase to 60 percent for CAD cannot precede this date as a matter of law. 4. Entitlement to an effective date earlier than February 17, 2005, for the award of TDIU In this case, in April 2012, the RO awarded TDIU and basic eligibility to DEA benefits and assigned an effective date of September 1, 2006, for both. Because the Veteran filed a timely notice of disagreement with the April 2012 rating decision that established the effective date for the award of TDIU and DEA and perfected his appeal, the Board properly has jurisdiction over the effective date issues. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). Subsequently, in October 2013, the RO awarded an earlier effective date of February 17, 2005, for both, but this was not a full grant of the benefits sought and the appeal for effective dates were then certified to the Board. Generally, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that one year. 38 U.S.C. § 5110(b)(3). See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (the statute and its implementing regulation require “that an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date”). The VA administrative claims process has recognized both formal and informal claims. See Norris v. West, 12 Vet. App. 413, 416 (1999). Prior to March 24, 2015, § 3.157(b)(1) of title 38, Code of Federal Regulations, provided that an informal claim for benefits “will” be initiated by a report of examination or hospitalization for previously established service-connected disabilities. 38 C.F.R. § 3.157(b)(1) (in effect prior to Mar. 23, 2015); see also Massie v. Shinseki, 25 Vet. App. 123, 132 (2011) (“It is self-evident that the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran’s disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened.”), aff’d, 724 F.3d 1325 (Fed. Cir. 2013). Moreover, a request for TDIU is “not a separate claim for benefits,” and is best analyzed as a request for an appropriate disability rating, either “as part of the initial adjudication of a claim, or... as part of a claim for increased compensation.” Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (TDIU “is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating”). In this case, the RO denied entitlement to TDIU in a January 2007 rating decision. However, the Board recognizes that during this time frame, the Veteran was appealing increased ratings for his service-connected disabilities, including CAD discussed above, and argued that his disabilities prevented him from working; thus, the claim for TDIU is deemed part and parcel of his increased rating claims. Therefore, despite being parceled out in the January 2007 rating decision, the issues of TDIU was essentially placed in appellate status along with the appeal for the underlying increased rating claims, which were filed in December 9, 2002. Accordingly, the January 2007 rating decision is not deemed a final decision on the matter of unemployability and the Board is obliged to review the evidence of record to determine whether the criteria for TDIU were met at any time since December 9, 2002. To be eligible for a TDIU rating, a claimant must be unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities, and if there is only one such disability, it is evaluated at 60 percent or more, or if there are two or more disabilities, at least one disability is evaluated at 40 percent and there is sufficient additional disability to bring the combined evaluation to 70 percent or more. 38 C.F.R. § 4.16(a). As discussed above in greater detail, the Board has determined that the Veteran is entitled to earlier effectives dates for a 40 percent rating for hepatitis C and a 60 percent rating for CAD since December 9, 2002, the date these claims were filed. The Board’s favorable decision with respect to these effective dates gives the Veteran a combined evaluation in excess of 70 percent throughout the applicable time period. Furthermore, the evidence sufficiently establishes that from December 9, 2002, the Veteran’s service-connected disabilities, namely his back and CAD, prevented him from securing or following substantially gainful employment. See, e.g. May 1999 Social Security Administration determination (finding the Veteran disabled since 1994 due to back and heart conditions); September 2003 VA examination report (“His major problem is that he is severely limited from his lumbosacral spine problems, which is service-connected.”). Thus, the criteria for entitlement to TDIU on a schedular basis pursuant to 38 C.F.R. § 4.16(a) have been met since December 9, 2002. Because the Veteran is not service-connected for any disability prior to this date, an effective date earlier than December 9, 2002, must be denied as a matter of law. 5. Entitlement to an effective date earlier than February 17, 2005, for the award of basic eligibility for DEA Finally, eligibility for DEA benefits requires an underlying service-connected disability that is both total and permanent in nature. 38 U.S.C. § 3501(a)(1)(A)(ii), (D)(i); see 38 C.F.R. §§ 3.807 (a)(1)-(2), 21.3021(a)(1)(iii), (3)(i) (2016). The RO, in its initial April 2012 rating decision, determined that the Veteran was entitled to an effective date for DEA that coincided with the date on which TDIU was established. The Board will not disturb this favorable finding and likewise concludes that the effective date for the award of TDIU should be used for the Veteran’s basic eligibility for DEA benefits. Accordingly, an effective date of December 9, 2002, for the award of basic eligibility for DEA is awarded. As above, because the Veteran was not service-connected for any disability prior to this date, an effective date earlier than December 9, 2002, must be denied as a matter of law. Special Monthly Compensation 6. Entitlement to SMC based on the need for aid and attendance The appellant contends that the Veteran was entitled to special monthly compensation based on being housebound and in need of regular aid and attendance because his service-connected disabilities. Special monthly compensation based on the need for aid and attendance is payable when, as a result of service-connected disability, a veteran has suffered anatomical loss or loss of use of both feet, of one hand and one foot, is blind in both eyes, is permanently bedridden, or requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, attend to the wants of nature, or protect oneself against the hazards or dangers incident to a claimant's daily environment. 38 C.F.R. § 3.352(a); see also Prejean v. West, 13 Vet. App. 444, 447-48 (2000). The term bedridden applies to a condition which, through its essential character, actually requires a claimant remain in bed; the fact that a clamant has voluntarily taken to bed or that a physician has prescribed rest in bed for part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). The Board finds, after resolving doubt in the appellant’s favor, that the criteria for special monthly compensation for aid and attendance for the Veteran prior to his death have been met. See 38 C.F.R. § 3.350, 3.352. Here, the evidence sufficiently establishes that his service-connected disabilities caused the inability to independently bathe, attend to hygiene, prepare meals. For example, a June 2012 letter from the Veteran’s physical therapist stated the following: [The Veteran] has had multiple falls in the last year due to his multiple service connected disabilities . . . [His wife] provides all care, including bathing, dressing assistance moving his legs in and out of bed, e[tc]. [f]or [the Veteran’s] daily care. She has been providing this care for seven years. With [his] declining health and decreased safety with walking due to service connected disabilities the power wheelchair and walk in tub/shower would be of great assistance to [his wife] and increase safety for both of them. Accordingly, special monthly compensation is warranted under 38 U.S.C. § 1114(l). The Board will allow the RO to assign the appropriate effective date when it implements the Board’s decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). REASONS FOR REMAND 1. Entitlement to special monthly compensation (SMC) based on housebound status is remanded. 2. Entitlement to an initial rating in excess of 70 percent for major depression, claimed as PTSD is remanded. 3. Entitlement to a disability rating in excess of 40 percent for posttraumatic discectomy and arthralgia of the lumbosacral spine is remanded. 4. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for hypertension is remanded. All the above issues require remand for outstanding pertinent records. Notably, a substitute claimant is not limited to the evidence of record at the time of the Veteran’s death. However, currently, VA has only obtained VA treatment records dated through November 2010, and the duty to assist requires VA to obtain all relevant VA treatment records prior to his death in February 2013. Additionally, the limited VA records that have been obtained thus far appear incomplete. See April 2012 and March 2012 VA documentation of uploading of CAPRI records to the Veterans Benefits Management System (VBMS) (noting records downloaded for treatment for the conditions of the “back” and “depression” only). Because VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal, a remand is required to allow VA to obtain all outstanding VA records pertinent to the issues listed above. The matters are REMANDED for the following action: Obtain the Veteran’s VA treatment records for the period from November 2010 through the present, as well as any non-duplicative VA records prior to that date that are relevant to any of the remanded issues. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Gielow, Counsel