Citation Nr: 18160559
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-46 344
DATE:	December 27, 2018
The claim of entitlement to an initial disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) is remanded.
The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD, to include on an extra-schedular basis pursuant to 38 C.F.R.§ 4.16(b), is remanded.
The Veteran had active duty service from March 1968 to December 1969.  
This appeal to the Board of Veterans Appeals (Board) arose from March 2016 and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  
In the March 2016 decision, the RO granted service connection for PTSD, and assigned a 50 percent disability rating, effective August 12, 2015.  In the October 2016 decision, the RO denied the Veteran’s TDIU claim.  The Veteran disagreed with the assigned disability rating for service-connected PTSD and with the denial of his TDIU claim, and this appeal ensued.
In July 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. 
Regarding the matter of representation, the Board notes that the Veteran has been represented in his appeal by various veterans’ service organizations (VSOs).  Most recently, in June 2017, he appointed the VSO, OTHER, as his representative, as reflected in a VA Form 21-22, Appointment of VSO as Claimant’s Representative, executed and filed in June 2017.  The Board recognizes this change in representation.
The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the higher rating and TDIU claims on appeal is warranted.
The severity of the Veteran’s PTSD was last evaluated by VA examination in September 2016.  During his July 2017 Board hearing, the Veteran asserted that his PTSD had increased in severity since last evaluated by VA examination.  Given the evidence indicating a possible worsening of the Veteran’s PTSD symptoms, the Board finds that a remand of this matter is needed to afford the Veteran a VA examination to fully assess the current severity of his service-connected PTSD.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).
Regarding the Veteran’s claim for a TDIU, the Board points out that entitlement to a TDIU is also a component of the higher rating claim, as such, it follows that any Board action on the TDIU claim, at this juncture, would be premature.  Hence, that matter is being remanded as well.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).
Prior to arranging for a new VA examination, to ensure that all due process requirements are met and that the record is complete, in addition to obtaining additional records of VA evaluation and treatment (noted above), the AOJ should also undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records.
As for VA records, during his Board hearing, the Veteran testified that he has continued to receive ongoing mental health treatment every one-to-two months; including treatment provided by a VA social worker.  Records of his VA mental health treatment dated since August 2016 have not been associated with the claims file.  Accordingly, the AOJ should obtain all outstanding records of VA mental health evaluation and/or treatment of the Veteran dated since August 2016. 
In this regard, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response.  See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period).  
Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159.  
The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal.  Adjudication of the higher rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate.
These matters are hereby REMANDED for the following action:
1. Obtain complete copies of all outstanding records of VA mental health evaluation and/or treatment of the Veteran, dated since August 2016.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.
2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claims on appeal that is not currently of record.  Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records.
Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide a claim within the one-year period).
3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA mental disorders examination, by an appropriate mental health professional, for evaluation of his service-connected PTSD. 
The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran’s documented medical history and assertions.  
All necessary tests and studies (to include psychological testing) should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.
The Veteran’s documented history and assertions, the examiner should identify and comment upon the extent, frequency, or severity (as appropriate) of all psychiatric symptoms attributable to the Veteran’s PTSD, as well as provide an assessment of the extent of occupational and social functioning resulting from such symptoms.
If the record reflects any change(s) in the level of severity of psychiatric impairment at any point since August 12, 2015 (the effective date for service connection for PTSD), the examiner should indicate the approximate date(s) of any such change(s), and provide an assessment as to severity of the disability (i.e., the extent of impairment in occupational and social functioning) on each date.
All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached must be provided.
5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).
6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the higher rating and TDIU claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, for the higher rating claim, consideration of whether staged rating of the disability is appropriate).
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Michael Wilson, Counsel

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