Citation Nr: 0930304 Decision Date: 08/13/09 Archive Date: 08/19/09 DOCKET NO. 05-28 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating greater than 30 percent for service-connected post-traumatic stress disorder (PTSD), from February 27, 2002, to May 12, 2004. 2. Entitlement to an initial disability rating greater than 50 percent for service-connected PTSD from May 13, 2004, to December 5, 2006. 3. Entitlement to an initial disability rating greater than 50 percent for service-connected PTSD from December 6, 2006. 4. Entitlement to a total evaluation due to unemployability on account of service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Elizabeth M. Pesin, Law Clerk INTRODUCTION The Veteran had active service from March 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), St. Petersburg, Florida, which granted service connection for the Veteran's PTSD with a 30 percent evaluation effective February 27, 2002. The Veteran appealed. In its July 2004 rating decision, the RO increased the Veteran's disability rating for PTSD to 50 percent disabling, effective May 13, 2004, and denied an increase prior to that date. However, because there have only been partial grants of the benefits sought on appeal, and the Veteran has not otherwise withdrawn his appeal, the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The entitlement to a disability rating greater than 50 percent for service-connected PTSD from December 6, 2006, and entitlement to TDIU being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period February 27, 2002, to May 12, 2004, the evidence shows that the Veteran's PTSD results in occupational and social impairment with reduced reliability. 2. The evidence from May 13, 2004, to December 5, 2006, does not show that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. For the period February 27, 2002, to May 12, 2004, the criteria for an initial evaluation of 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2008). 2. From May 13, 2004, to December 5, 2006, the criteria for an initial evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). The Veteran's PTSD claim arises from his disagreement with an initial evaluation following a grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As such, the notice requirements for increased rating claims enunciated under Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) are not for application in this case. In this case, the VCAA duty to notify was satisfied by way of letters sent to the appellant in June 2002 and December 2004 that fully addressed all necessary notice elements. The letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The Board finds no prejudicial errors to the appellant. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case (SSOC) issued in December 2006 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, no specific letter with Dingess notice has been sent to the appellant. However, the Veteran had actual knowledge of the requirements. This is shown by the Veteran's claim for an increased rating in excess of 30 percent and the evidence he provided in support of an increased rating. This was followed by readjudication in the December 2006 SSOC. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). However, no notice errors appear in this case. For this reason, no further development is required regarding the duty to notify. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The Veteran has not referred to any private treatment records. The appellant was afforded VA medical examinations in June 2004 and March 2005. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased disability rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2008). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2008); Peyton v. Derwinski, 1 Vet. App. 282 (1991). There is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown, 7 Vet. App. 55, 58 (1994) -- that the present level of the Veteran's disability is the primary concern in a claim for an increased rating and that past medical reports should not be given precedence over current medical findings -- does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126. Instead, where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's service-connected PTSD is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2008). PTSD is evaluated under the General Rating Formula for Mental Disorders, which provides that: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent disability rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994).A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). PTSD from February 27, 2002, to May 12, 2004 The Veteran's original claim for service connection for PTSD with depression was received by the RO in March 2002. By rating action of the RO dated in March 2004, his claim was granted, and a disability rating of 30 percent was assigned effective as of February 27, 2002. VA outpatient treatment records dated from February 2002 to April 2004 show that the Veteran had been followed for PTSD, which started with complaints of depression and anxiety. A May 2002 initial PTSD consult assessed that the Veteran had PTSD with delayed onset. Thereafter, he underwent regular treatment with medications and attended monthly psychotherapy. Throughout psychotherapy, the Veteran was noted to be dressed neatly and adequately groomed. He exhibited fair eye contact and normal speech. Thoughts were logical. Judgment and insight were fair. The Veteran's symptoms included intrusive thoughts, flashbacks, solitude, desire to hurt other people when aggravated and nightmares. His mood was depressed at varying levels, and affect was noted to be constricted or blunted on at times. A GAF score of 45 was assigned on multiple occasions. Based on the foregoing, the Board finds that resolving all reasonable doubt in the Veteran's favor, an increased disability rating is warranted. While the Veteran does not have all of the symptomatology consistent with a 50 percent disability rating, the Board finds that overall the Veteran's disability picture more nearly approximates that which allows for a 50 percent disability rating. 38 C.F.R. §§ 4.7, 4.21. Overall, the evidence of record shows that the Veteran experiences occupational and social impairment characterized by some difficulty with anger, irritability, persistent and recurrent thoughts, sleep impairments, avoidant behaviors, isolation, preoccupation and paucity of thoughts and ideas, and sleep disturbances. His GAF score has been 45 during the pendency of this appeal, which is indicative of serious symptoms impairment in social and occupational functioning. While the Board acknowledges that the evidence does not show disturbances of speech or difficulty understanding complex commands, the GAF scores delineating moderate to serious symptoms throughout the appeal period are generally commensurate with the diagnostic criteria for a 50 percent disability rating under.130, Diagnostic Code 9411. Therefore, resolving all reasonable doubt in the Veteran's favor, the Veteran's social impairments more closely approximates the criteria for a 50 percent evaluation. The Board has additionally reviewed the evidence to determine if a disability rating in excess of 50 percent may be assigned under the rating criteria. After a review of the evidence of record, the Board has concluded that the Veteran's PTSD is not productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. The Veteran generally appears to be able to function independently and well on a daily basis. While he has expressed experiencing a desire to hurt others and has reported having few friends, the evidence does not show that the Veteran has deficiencies in most areas of judgment, mood, and social relationships that affect his ability to function independently and appropriately, as is required to meet the criteria for the assignment of a 70 percent rating under 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9440. The medical evidence reflects that the Veteran is generally able to care for himself. As such, the medical evidence is not supportive for the assignment of a 70 percent disability rating. PTSD from May 13, 2004, to December 5, 2006 The Veteran underwent VA treatment for PTSD from April 2004 to December 2006. He described continuous flashbacks of his in-service experiences. He was noted to mostly isolate himself but had a few friends. He enjoyed his computer, cooking and working on cars. He rode a bike for exercise. He verbalized his frustration with car issues, described frustration with having had so many jobs in the past and problems performing and getting along with others, including customers. He described having problems with authority at work. A GAF score of 45 was assigned in April 2004. In August 2004, the Veteran began to exhibit suicidal tendencies. His symptoms included hypervigilance, intrusive thoughts, poor concentration, avoidance, exaggerated startle response and poor sleep. By July 2004, he had begun to attend PTSD support group. Some improvement was noted. In December 2004, he was hospitalized but soon released upon improvement to baseline. The Veteran had no suicidal thoughts at the time of discharge. He stated that he could no longer work due to his inability to work with others, but continued to hold odd jobs. A VA examination report dated in June 2004 shows that the Veteran's entire claims file was reviewed by the examiner in conjunction with conducting the examination of the Veteran. The Veteran reported insomnia, isolation, irritability, fear of crowds, nightmares, recurring thoughts of the past and apprehension of something terrible. He reported that he watched movies about war, the thoughts from which would bother him afterwards. He also reported that sometimes he hears his mother calling his name. He complained of terrible difficulty concentrating. There had been no suicidal gestures or attempts. He complained that he felt threatened all the time, and that his problems had intensified. Mental status examination revealed that, when the Veteran arrived at the examination, he was alert, cooperative and verbal. He possessed good eye contact. His affect was slightly blunted and his mood was anxious. His speech was clear, coherent, goal-oriented and unpressured. No flights of ideas or looseness of association were observed. He exhibited no suicidal or homicidal ideations, no auditory or visual hallucinations, and no delusions. His insight and judgment were fair. The examiner concluded that the Veteran's symptoms were of moderate severity and interfered with his well-being, sleep and relatedness to others. The examiner noted that the Veteran's symptoms would interfere moderately with his ability to function in the workplace. A GAF code of 50 to 55 was assigned, indicating moderate to serious symptoms. The Veteran underwent a VA examination in March 2005. The examination report shows that the Veteran's entire claims file was reviewed by the examiner in conjunction with conducting the examination of the Veteran. The Veteran reported having difficulty controlling his temper, nightmares, inability to watch any television programs having to do with military, being easily startled, isolation, fear of crowds and irritability. He continued to work odd jobs, but stopped working after his second heart attack. Mental status examination revealed that when the Veteran arrived at the examination, he was alert, cooperative and verbal. He possessed good eye contact. His affect was slightly blunted and his mood was anxious. His speech was clear, coherent, goal-oriented and unpressured. No flights of ideas or looseness of association were observed. He exhibited to suicidal or homicidal ideations, no auditory or visual hallucinations, and no delusions. His insight and judgment were fair. The examiner concluded that the Veteran's symptoms were of moderate to severe intensity. The examiner noted that the Veteran's symptoms included hypervigilance, hyperarousal, intrusive thoughts and difficulty trusting others. The examiner stated that these symptoms would interfere with sleep, sense of well-being, and his inability to relate to others. His symptoms would interfere moderately to markedly with his ability to function in the work place. His ability to get along with others and his focusing concentration would be limited and so would his work output, indicating that his PTSD interfered moderately to markedly with his ability to function in work place. In addition, it was noted that the Veteran had other medical problems that created painful situations. would interfere moderately with his ability to function in the workplace. A GAF code of 50 was assigned, indicating moderate to serious symptoms. The evidence of record includes regular psychotherapy thereafter until December 5, 2006. Generally, the Veteran was observed to be neatly dressed and adequately groomed, and presented with normal and coherent speech. Thought process was logical, while judgment and insight were intact. Mood was generally observed as mildly depressed, with affect appropriate to mood. GAF was consistently assessed at 45. In examining the evidence in this case since May 2004, the Board concludes that generally, the findings do not approximate the criteria for the assignment of disability rating greater than 50 percent. Although the psychiatric records for this period indicate that the Veteran suffers from moderate to serious symptoms, as suggested by the assigned GAF scores of 45 to 50, the evidence of record generally shows that he was able to maintain employment for many years despite his chronic PTSD. Although the Veteran no longer works, his inability to work is due to disabilities in conjunction with PTSD, not solely due to PTSD. The symptoms as described above more nearly approximate a disability manifested by occupational and social impairment with reduced reliability and productivity, as contained in the criteria for a 50 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9440. The weight of the medical evidence is otherwise against a finding that the Veteran's symptoms are generally so severe as to warrant a higher rating. Indeed, the Veteran has not generally demonstrated a disability that is manifested by symptoms which would suggest occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Moreover, although the records show that the Veteran exhibited anxiety, anger, nightmares, and a desire to be alone, he was otherwise cooperative, able to answer questions, focused mentally, and was in good reality contact. His memory was mostly fine, his cognition was intact, he was well-oriented, and he needed no supervision to complete activities of daily living or to maintain personal safety. He expressed some degree of distress at work, but was able to successfully work full time, as well as carry on his activates such as exercising. He has not demonstrated any obsessional rituals throughout his treatment. While the Veteran does have problems establishing and maintaining effective relationships, he does not have an inability to do so. He maintains some friends and acquaintances. Again, he had been continuously employed for many years, and has also been married twice. While the Veteran states that he experiences desire to hurt others, he has never acted on it. In view of the foregoing, the Board finds that, overall, from May 13, 2004 to December 5, 2006, the medical evidence of record does not demonstrate that the Veteran's symptoms warrant the assignment of the next higher disability rating of 70 percent. The Veteran's symptoms have remained commensurate with the criteria for a 50 percent rating. As the preponderance of the evidence is against the assignment of a disability rating in excess of 50 percent from May 13, 2004 to December 5, 2006, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. [Continued on Next Page] ORDER An initial disability rating of 50 percent for service- connected PTSD, for the period February 27, 2002, to May 12, 2004, is granted. A disability rating greater than 50 percent for service- connected PTSD May 13, 2004, to December 5, 2006, is denied. REMAND After a thorough review of the claims file, the Board finds that additional development is necessary before a decision on the merits of the claim of increased disability rating for PTSD from December 5, 2006, can be reached. Additionally, the claim for TDIU is inextricably intertwined with the claim of increased disability rating for PTSD, which is also a part of this appeal. In other words, if increased disability rating in excess of 50 percent for PTSD is granted, this will impact the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, a decision on the TDIU issue is deferred. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2008); Robinette v. Brown, 8 Vet. App. 69 (1995). In this regard, the Board notes that the Veteran was last afforded complete VA psychiatric examination in March 2005, and relevant VA psychiatric records contained in the claims file only go through December 6, 2006. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Although the Veteran's examination is not unduly remote, the Veteran's representative, in a July 2009 written brief presentation, requested a new VA examination due to the passage of time. Because there may have been a significant change in the Veteran's condition, the Board finds that a new examination is in order. Furthermore, it remains unclear to the Board what the Veteran's current PTSD symptoms are and whether they are progressively worsening. Thus, the Board finds that a remand for a new VA examination and a medical opinion is necessary in order to fairly address the merits of his claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 1154(b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the current severity of his service-connected PTSD. The claims file should be reviewed by the examiner and the examination report should note that review. 2. Then, readjudicate the claim entitlement to a disability rating in excess of 50 percent for service- connected PTSD, from December 6, 2006. 3. Thereafter, the Veteran's TDIU claim should be adjudicated. If TDIU may not be afforded on a schedular basis as provided for under 38 C.F.R. § 4.16(a), the RO/AMC shall consider whether referral for an extraschedular rating is merited. 4. If the determination as to either of these claims remains less than fully favorable to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs