Citation Nr: 21021675 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-10 556 DATE: April 13, 2021 REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 30 percent for headaches disability is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1979 to May 1982. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 60 days for the submission of supporting evidence. In February 2020, the Veteran’s representative requested an additional 60-day extension. A subsequent Board letter notified the Veteran, and his representative, that the undersigned VLJ granted the extension request. 1. Entitlement to a rating in excess of 70 percent for PTSD is remanded. 2. Entitlement to a rating in excess of 30 percent for headaches disability is remanded. Issues 1-2. The Veteran, and his representative, contends that a higher evaluation is warranted for his service-connected PTSD and headache disabilities. For reasons explained below, the Board finds that remand is necessary. First, the Board takes notice that the record indicates that there may be outstanding relevant VA treatment records. VA treatment records were last obtained by VA in November 2017, about four years ago, and the record shows that the Veteran has been consistently receiving VA treatment for his PTSD and headaches disability since at least 2002. Additionally, at the December 2019 Board hearing, the Veteran testified to currently, and only, receiving treatment for his disabilities at VA. See Hearing Transcript 8, 11 (December 2019). Thus, as any recent complaint or treatment with VA is relevant to determining the current severity of the Veteran’s PTSD and headaches disability, remand is necessary to associate any outstanding VA treatment record with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Second, the record reflects a material worsening of the Veteran’s disabilities since his last VA examinations. In this regard, at the December 2019 Board hearing, the Veteran testified that his PTSD symptoms have worsen to the extent that he now has suicidal thoughts several days a week. See Hearing Transcript at 4 (December 2019). The October 2016 VA examination report, however, reveals that the Veteran denied active suicidal ideation, planning, and intent. Next, with regard to his headache disability, the Veteran testified to experiencing headaches about every day, with at least two to three prostrating migraines at week. Id. at 9. However, at the October 2016 VA headache examination, the Veteran reported experiencing two to four prostrating headaches each month. While the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, the Veteran testified to an increased severity of symptoms associated with his disabilities since his last VA examinations. Given the competent evidence of worsened symptoms since the last VA examinations, a remand is necessary to adequately evaluate the current severity of the Veteran’s service-connected disabilities. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Therefore, new VA examinations are needed to assist in determining the current severity of the Veteran’s service-connected disabilities. Snuffer, 10 Vet. App. at 400. Lastly, the Board observes that, on review, there may be potentially relevant Social Security Administration (SSA) records outstanding. In this regard, the Board notes that the Veteran submitted SSA records revealing that he was awarded SSA disability benefits for affective/mood disorders and for disorders of the back. Although the Veteran submitted the SSA records, there is no indication that he submitted the complete set of records. Further, the Board notes that these records are considered federal records for duty to assist purposes and the agency of original jurisdiction must make appropriate attempts to obtain the records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Indeed, 38 C.F.R. § 3.159(c) explicitly lists the SSA as an agency from which VA is required to obtain relevant records. Thus, given the above, the Board finds that remand is necessary for further development of the claims. Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (Board has discretion below as to how much development is required). Accordingly, any adjudication of the claims at this juncture is unreasonable given the appearance of an incomplete record. Brambley v. Principi, 17 Vet. App. 20 (2003). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 3. A TDIU due to service-connected disability is remanded. The Board finds the Veteran’s claim for a TDIU is inextricably intertwined with the claim for entitlement to a rating in excess of 70 percent for PTSD and the claim for entitlement to a rating in excess of 30 percent for headaches disability. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claims. The matters are REMANDED for the following actions: 1. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Obtain all VA treatment records dated from November 2017 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected headaches disability. (a) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b) For TDIU purposes: (i) Elicit from the Veteran his complete educational, vocational, and employment history. (ii) Ask the Veteran to describe in his own words the functional impact of his headaches disability on his ability to perform the physical and mental acts required for substantially gainful work. The Veteran’s response should be recorded in the examination report. (iii) Indicate the objective functional effects of the Veteran’s headaches disability on his ability to perform the physical acts (e.g., walking, sitting, standing, bending) and mental acts (e.g., concentration, focus, attention, and memory) required for employment. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. (a) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. (b) For TDIU purposes: (i) Elicit from the Veteran his complete educational, vocational, and employment history. (ii) Ask the Veteran to describe in his own words the functional impact of his PTSD on his ability to perform the physical and mental acts required for substantially gainful work. The Veteran’s response should be recorded in the examination report. (iii) Indicate the objective functional effects of the Veteran’s PTSD on his ability to perform the physical acts (e.g., walking, sitting, standing, bending) and mental acts (e.g., concentration, focus, attention, and memory) required for employment. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, Associate 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.