Citation Nr: 21014269 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-89 889A DATE: March 11, 2021 REMANDED Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol dependency, on the basis of substitution, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), on the basis of substitution, is remanded. Entitlement to service connection for residuals of a gunshot wound to the right foot, on the basis of substitution, is remanded. Entitlement to service connection for residuals of a gunshot wound to the buttocks, on the basis of substitution, is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from March 1968 to March 1970. The Veteran died in October 2013, and the appellant is the Veteran’s surviving spouse. A November 2020 letter reflects that she has been accepted as the Veteran's substitute for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The Board expresses its sympathy to the appellant on the loss of her husband, and recognized the valuable service he gave this country in the United States Army. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. The Board notes that the August 2013 rating decision granted entitlement to service connection for PTSD with alcohol dependency and assigned an initial 50 percent disability rating effective from March 6, 2013. The rating decision also denied the Veteran's service connection claims for residuals of a gunshot wound to the buttocks and residuals of a gunshot wound to the right foot. After the Veteran passed away in October 2013, the appellant submitted a VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child, on December 17, 2013 and December 27, 2013. On December 17, 2013, the agency of original jurisdiction (AOJ) also received a fee agreement signed by the appellant indicating that the appellant disagreed with the initial assigned rating for PTSD with alcohol dependency and the August 2013 rating decision’s denials of the Veteran’s service connection claims for residuals of a gunshot wound to the buttocks and residuals of a gunshot wound to the right foot. Although the AOJ subsequently issued a January 2014 rating decision that granted entitlement to service connection for the cause of the Veteran’s death, the February 2014 notification letter for this decision informed the appellant that entitlement to accrued benefits were denied. The appellant filed a notice of disagreement with this determination in February 2015, and the AOJ issued an October 2015 statement of the case (SOC) that denied entitlement to accrued benefits. The AOJ found in part that the appellant had not submitted a timely notice of disagreement with the August 2013 rating decision. The appellant submitted a timely VA Form 9 for this issue in December 2015. In an October 2019 statement, the Veteran’s representative asserted that the Veteran’s submission of a VA Form 21-534 in December 2013 was a request to substitute. 38 C.F.R. § 3.1010(c)(2). A subsequent October 2020 Decision Review Officer (DRO) decision awarded an increased rating of 70 percent for PTSD with alcohol dependency effective from March 6, 2013 on the basis of accrued benefits. The AOJ noted that the rating decision was issued in response to the appellant's December 2015 substantive appeal, and the claim was still in considered in appellate status as it was a partial grant of the benefits sought. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The November 2020 notification letter for this decision informed the appellant that her claim for accrued benefits was approved. As noted above, this letter also notified the appellant that she had been accepted as the substitute claimant. In a subsequent November 2020 supplemental statement of the case (SSOC), the AOJ adjudicated the initial increased rating claim for PTSD with alcohol dependency and the service connection claims for residuals of a gunshot wound to the buttocks and residuals of a gunshot wound to the right foot. Each issue was addressed on the basis of accrued benefits, and the adjudicative actions section of the SSOC reflects that the AOJ accepted the appellant's December 17, 2013 notice of disagreement for the August 2013 rating decision. These issues were then certified to the Board in a November 2020 VA Form 8. In a November 2020 response to the SSOC, the appellant’s representative asserted that the appellant continued to disagree with the current assigned rating for the psychiatric disability and the denials of the service connection claims for residuals of a gunshot wound to the buttocks and residuals of a gunshot wound to the right foot. Although these issues were not specifically addressed in the October 2015 SOC, in light of the AOJ treating the issues as though they were on appeal in the November 2020 SSOC and the November 2020 VA Form 8 as well as the November 2020 statement from the appellant’s representative indicating that the appellant understood the issues to be on appeal, the Board accepts jurisdiction over these issues. See Percy v. Shinseki, 23 Vet. App. 37, 46-7 (2009). In consideration of the October 2019 statement from the appellant’s representative indicating that the appellant was requesting to proceed a substitute claimant, the Board has characterized the issues on appeal on the basis of substitution. The Board also notes that although the appellant requested a Board videoconference hearing in the December 2015 VA Form 9, the appellant’s representative withdrew this hearing request in an October 2019 statement. As such, there are no outstanding Board hearing requests. During the pendency of the initial increased rating claim on appeal, the appellant’s representative raised the issue of entitlement to a TDIU based on the Veteran’s service-connected PTSD with alcohol dependency. See, e.g., October 2019 Statement from Representative. The agency of original jurisdiction (AOJ) later denied this issue in a February 2021 decisional letter. However, as the claim for a TDIU was raised in the context of the increased claim on appeal, the issue is part and parcel of this claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, the Board has assumed jurisdiction over the issue. 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD with alcohol dependency, on the basis of substitution, is remanded. 2. Entitlement to a TDIU, on the basis of substitution, is remanded. 3. Entitlement to service connection for residuals of a gunshot wound to the right foot, on the basis of substitution, is remanded. 4. Entitlement to service connection for residuals of a gunshot wound to the buttocks, on the basis of substitution, is remanded. Regarding the claims on appeal, a remand is necessary to obtain outstanding Vet Center treatment records. Although a June 2013 VA treatment record indicated that the Veteran previously received treatment at a Vet Center for PTSD, records from a Vet Center facility are not associated with the claims file. These records appear to be relevant to the Veteran's increased rating claim for PTSD. Moreover, records generated by VA facilities, such as Vet Center records, are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, a remand is necessary for all the claims on appeal in order for efforts to be made to obtain these records. See 38 C.F.R. § 3.159(c); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (holding that sufficiently identified VA treatment records must be obtained regardless of relevance). In addition, a February 2013 VA treatment record indicated that the Veteran received Social Security Administration (SSA) disability benefits. The record does not show that the AOJ has attempted to obtain these records. As it is unclear whether these records are related to the claims on appeal, the AOJ should request the Veteran's SSA records upon remand. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2). Regarding the claim for a TDIU, the Board notes that the appellant has not yet completed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Although the AOJ previously requested for the appellant to submit a VA Form 21-8940 in a November 2020 letter, the Board finds that the appellant should be provided another opportunity to submit this form on remand. The TDIU issue is also inextricably intertwined with the initial increased rating claim for PTSD with alcohol dependency remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. With any necessary assistance from the appellant, obtain all records from any Vet Center where the Veteran received treatment. 2. Contact the Social Security Administration and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the appellant and her representative. 3. Provide the appellant with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and ask her to complete and return this form. 4. Thereafter, readjudicate the issues on appeal, to include the claim for entitlement to a TDIU, on the basis of substitution. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.