Citation Nr: 1007275 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 03-36 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to an increased initial evaluation in excess of 10 percent for a generalized anxiety disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from 1980 to 2000, when he retired based on his length of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction of the claims files was transferred to the Montgomery, Alabama RO during the course of the appeal. The Board Remanded the appeal in July 2006. The Veteran initially requested a Travel Board hearing. The Veteran cancelled that request by a signed, written, statement submitted in January 2005. The Veteran has claimed entitlement to an increased evaluation for a psychiatric disorder. Construing the claim liberally, however, the Board finds that it should be characterized as one including a claim for a total rating based on individual unemployability. A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has submitted evidence that he is unemployable due to a psychiatric disorder. The Veteran has contended that he is unemployable. Therefore, the Board finds the Veteran has reasonably raised the issue of entitlement to a TDIU as an element of the claim for an increased initial rating on appeal. The issue is thus added to the title page of this decision. The issue of entitlement to a total rating based on individual unemployability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to August 3, 2005, the Veteran's service-connected psychiatric disability was manifested by claustrophobia, labile mood, mild anxiety, and use of medications, but not by flashbacks, nightmares, hypervigilance, or by more than mild industrial or social impairment, and the Veteran continued to work full-time at a stressful job requiring a security clearance. 2. Prior to August 3, 2005, the psychiatric disorder was manifested by symptoms which most nearly approximated 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, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events), but generally did not result in 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. 3. From August 3, 2005, the Veteran's service-connected psychiatric disability has been manifested by panic attacks, depression, anxiety, agitation, paranoia, irritability, rumination, and homicidal fantasies, impaired judgment leading to loss of his security clearance and then loss of employment, and providers assigned Global Assessment of Functioning (GAF) scores ranging from 35 to 70, but the Veteran has not manifested delusions, hallucinations, or difficulties performing activities of daily living, and continues to live independently. CONCLUSIONS OF LAW 1. Criteria for an increase in the Veteran's initial disability evaluation for psychiatric disability from 10 percent to 30 percent for generalized anxiety disorder, but no higher, are met from February 1, 2000 through August 2, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.125, 4.130, Diagnostic Code 9411 (2009). 2. Criteria for an increase in the Veteran's initial disability evaluation from 10 percent to 70 percent for PTSD, but no higher, are met from August 3, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.125, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to an initial evaluation in excess of 10 percent for his service-connected psychiatric disability. Before assessing the merits of the appeal, VA's duties to the claimant must be examined. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Duty to Notify Under the VCAA, VA has a duty to inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide 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 RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claimant is also entitled to notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran sought service connection for a psychiatric disorder. That claim was granted, and the Veteran seeks an increased initial evaluation following the grant of service connection by an August 2001 rating decision. Under such circumstances, the duty to notify the Veteran of the evidence required to substantiate his claim has been satisfied, since the grant of service connection establishes that the claim has been substantiated. The duty to notify the Veteran has been met. Duty to Assist Next, VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him 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. In this case, the Veteran has been afforded VA psychiatric examinations on several occasions, including in 2003, 2006, 2007, and 2009. VA and private clinical records have been obtained. A complete SSA record on compact disc (CD) has been obtained from SSA and associated with the claims file. The Board has reviewed that CD to determine whether it includes relevant records not associated in hard copy with the claims file. While that CD contains numerous records, the relevant records are already of record or duplicate information associated in "hard copy" with the record. 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). Significantly, neither the Veteran nor his representative has identified 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 Veteran is required to fulfill VA's duty to assist him 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). Claim for increased disability evaluation The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R., Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. A rating that is assigned with a grant of service connection, such as the case in this appeal, must take into account all evidence of the nature and severity of the disability from the effective date of service connection. Thus, the rating might be a "staged" rating, that is, one comprised of successive ratings reflecting variations in the disability's severity since the date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The veteran's appeal for a higher initial evaluation for the disability at issue requires consideration of staged ratings. Criteria for evaluating PTSD Generalized anxiety disorder is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400, using The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. PTSD, under DC 9411, is also evaluated by reference to The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. For both DC 9400 and DC 9411, a 30 percent rating is warranted where the evidence discloses 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). A 50 percent 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. To demonstrate entitlement to a 70 percent evaluation, the evidence must show deficiencies in most areas and such symptoms as suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene. Entitlement to a 100 percent schedular evaluation is warranted where there are 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. The Court has noted that Global Assessment of Functioning (GAF) scores are scaled ratings reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders 32 (4th ed.) (DSM-IV). VA's Rating Schedule employs nomenclature based upon the DSM-IV, which includes the GAF scale. See 38 C.F.R. § 4.130. A GAF score from 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning. In such cases, the Veteran is generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms. Scores from 41 to 50 reflect serious symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). Facts The Veteran's service treatment records disclose that he sought medical treatment in early 1998 for headaches. No etiology was found for the headaches, but the Veteran was treated with two different medications for hypertension and "stress" in February 1998. During the following months, he sought medical treatment for insomnia and stress. In 1999, medications for "a stress condition" were continued. In February 1999, he was treated for continuing complaints of claustrophobia, and he was provided with a medical statement exempting him from using a gas mask during emergency drills because of his claustrophobia. As early as during his deployment in the Persian Gulf, the Veteran manifested hyperventilation, sweating, and "paralysis" when he had to don a gas mask. In mid-1999, the Veteran was also being treated with Atarax for "anxiety." These treatment records reference the Veteran's prior treatment with lorezepam (ativan) for anxiety when he was stationed in Panama. In an August 2001 rating decision, service connection was granted for generalized anxiety disorder, claimed as stress, and a 10 percent evaluation was assigned. The Veteran disagreed with this evaluation, noting that he had been under treatment with such medications as Atarax in service. He submitted a July 2001 post-service record reflecting continued diagnosis of stress/anxiety and continuation of the prescription for Atarax. December 2001 VA outpatient treatment records reflect that the Veteran's anxiety was "controlled" with medications. March 2002 private treatment notes reflect that the Veteran's claustrophobia was making it more difficult to treat the Veteran's sleep apnea and allergies. June 2002 VA outpatient treatment records reflect that the Veteran's medicals were changed to Paxil and Xanax. The VA records reflect that the private provider increased the prescribed dose of Paxil from 20 mgs to 40 mgs because the Veteran was having panic attacks at the 20 mg dose. The Veteran reported that he was under treatment by GB, MD. Dr. B's records disclosed that the Veteran report increased anxiety, with panic attacks and hyperventilation, in April 2002. Dr. B's records note the need for an increase in dosage of Paxil because the Veteran reported episodic panic attacks with hyperventilation. Xanax was prescribed as well. A statement from the Veteran dated in March 2003 notes that his work in the Command and Control career field was stressful because it required staffing at nights and on weekends and his memory was suffering. The report of June 2003 VA evaluation discloses that the examiner again assigned a diagnosis of anxiety disorder, indicating that not enough information had been gathered to assign a diagnosis of PTSD or panic attacks. Veteran continued to take one medication regularly and one on an as- needed basis. The examiner assigned a GAF score of 55. Following the June 2003 VA examination, there are no records relating to treatment of an anxiety disorder, or medications used to treat anxiety disorder, until August 2005. In early April 2005, the Veteran was observed to complain of chest pain at work. He was taken for emergency treatment and transferred for hospitalization. Myocardial infarction was ruled out. The etiology of the chest pain was not determined. However, the Veteran's private treating psychiatrist has provided an opinion that the April 2005 complaint of chest pain, and additional episodes of treatment for chest pain through 2006, were manifestations of the Veteran's service-connected psychiatric disorder. The Board finds that the evidence establishes that the Veteran's psychiatric disorder was 30 percent disabling at the time of the Veteran's separation from service and through early April 2005. In particular, the Veteran required medication and medical treatment for his symptoms, and had certain limitations that had potential impact on his occupational functioning, especially limitations due to claustrophobia. Moreover, the only VA examination conducted during this period disclosed a GAF score of 55. The Board finds that the need for treatment and the assigned GAF score are more consistent with a 30 percent evaluation than with a 10 percent evaluation. However, the evidence establishes that the Veteran's psychiatric disability was not more than 30 percent disabling. The Veteran continued to work full-time, in a stressful job requiring a security clearance. There is no evidence that the Veteran required more than infrequent medical evaluation during this initial evaluation period. The history at the time of August 2005 psychiatric evaluation reflects that the Veteran continued to take Paxil, but the Veteran was not participating in any other therapy. The Veteran reported an increase in depression in the 18 months prior to the August 2005 evaluation, as the Veteran was having financial problems and had learned, in 2004, that his wife was having an affair. However, there is no evidence that the Veteran's behavior or conversation were other than routine, that he manifested panic attacks more frequently than weekly, lost time from work as a result of the psychiatric disability, or that the effect of the disability on his occupational functioning was other than episodic. The record establishes that the Veteran's April 2005 complaint of chest pain, which resulted in emergency treatment and hospitalization, was due to the service- connected psychiatric disorder. However, a 30 percent evaluation encompasses weekly panic attacks. There is no evidence that the Veteran manifested panic attacks more than once a week before or after the April 2005 episode of "chest pain." The Board finds that an increased evaluation from 10 percent to 30 percent, but no higher initial evaluation, is warranted prior to August 3, 2005. The discussion above reflects that the Board has considered staged ratings. Fenderson, supra. The Board has considered whether an evaluation in excess of 30 percent may be assigned during any portion of the period prior to August 3, 2005, but finds that there is no portion of the period at issue during which the Veteran's disability was more than 30 percent disabling. The Board finds that no criterion for consideration or an extraschedular evaluation in excess of 30 percent is presented by the record. 38 C.F.R. § 3.321(b). Referral for consideration of an extraschedular evaluation is not warranted. 2. Evaluation from August 3, 2005 On August 3, 2005, the Veteran sought medical treatment for headaches and atypical chest pain. The provider assigned a diagnosis of major depression. The Veteran was tearful. He reported family difficulties, including a difficult divorce, and problems at work. The Veteran was referred for psychiatric evaluation. The provider requested that the Veteran be placed on medical leave of absence. The report of August 2005 psychiatric referral discloses that the Veteran was in the midst of a divorce. The child custody issues were proving difficult. He had been jailed on stalking charges, which he reported were untrue, and were dismissed. He had fantasies of killing his wife and the man with whom she was having an affair, but he had no specific plan. He reported having weapons which were stored at his sister's house, where he was living. His sister had a key to the gun cabinet, but the Veteran did not. He reported that he had been unable to work for the past week, because he was unable to keep his temper from erupting. His attention span was distracted and his concentration was poor, as demonstrated slow speed and errors in digit recall testing. He did not manifest hallucinations or delusions, but his thought content revealed ruminations, and he was focused on a conspiracy against him. He was moderately agitated. He had recently lost 60 pounds. The provider assigned a GAF score of 35 and a diagnosis of PTSD as well as major depression. The provider concluded that the Veteran's impulsive behaviors reflected serious psychiatric problems. The provider also opined that it was questionable whether it was safe for him to continue working, and recommended that the Veteran be relieved from rotating shifts and excessive hours. In mid-August 2005, the Department of the Army notified the Veteran and his employer that the Veteran's access to classified military information was being suspended. Private clinical treatment records note that, in September 2005, the Veteran had an uncontrollable eye twitch due to stress. His homicidal thoughts toward his supervisor at work were thought to have stabilized. October 2005 clinical records reflect that the Veteran still went to work, but was unable to perform his functions, since he could not use the computers. He was frustrated by wasting time involved in showing up for work when he could not perform his duties. It was noted that he had spoken to a superior officer in a belligerent and threatening manner. In February 2006, the provider concluded that Paxil was ineffective in controlling the Veteran's symptoms. The Veteran was again noted to have uncontrolled eye twitching. There are no treatment records, private or VA, which reflect the course of the Veteran's psychiatric disability over the next few months until the Veteran underwent VA examination in December 2006. The Veteran's private clinical records in late 2005 and early 2006 reflect that he was having financial problems. SSA records disclose that the Veteran had no gainful employment after June 11, 2006. The circumstances of the Veteran's loss of employment are somewhat unclear. The record establishes that the Veteran had a period of incarceration during 2006. The dates of such incarceration are not clearly established, however. In September 2006, the Veteran was treated for chest pain. A myocardial infarction was ruled out. There is a medical opinion of record that the Veteran's complaints, diagnosed as atypical chest pain, were, in fact, manifestations of his psychiatric disorder. The report of December 2006 VA examination discloses that the examiner noted the August 2005 assignment of a diagnosis of PTSD and GAF score of 35. The examiner stated that, if the Veteran's diagnosis was PTSD, there could not be assignment of a diagnosis of another anxiety disorder in addition. The examiner concluded that correction of the Veteran's diagnosis to PTSD was required. The Veteran reported that he lost the security clearances required for his employment because of his anxiety disorder, and therefore lost his job. The Veteran reported episodes of sweating, difficulty sleeping, daytime tiredness, and insomnia. The Veteran reported difficulty concentration. He was not able to remember three of five words after five minutes. He did not know his mother's birthday. He had difficulty with serial 7s. He reported difficulty falling asleep and difficulty staying asleep. He manifested hypervigilance, including an exaggerated startle reflex. He was irritable and anxious. A GAF score of 48 was assigned. Medication was prescribed but the provider noted that he was afraid of taking medications and appeared to be non- compliant, at least at times. A GAF of 48 was assigned. The report of VA examination in May 2007 revealed that the Veteran had recurrent thoughts of stressful events. His symptoms were essentially unchanged. A diagnosis of PTSD was assigned, and the examiner again assigned a GAF score of 48. In May 2008, the Veteran's depression was described as moderately severe. December 2008 private treatment notes describe the Veteran has having crying spells and obsessions but no clear homicidal or suicidal intent or plan. The report of February 2009 VA examination discloses that the Veteran reported that he resigned from his post-service employment in 2006 in lieu of being fired. He reported being jailed at least twice during his divorce proceedings and the legal proceedings regarding custody. The Veteran was overweight. He became agitated when talking about his legal problems. He reported continuation of anxiety and depression. He had thoughts about harming others but no specific plan. He had discontinued taking some medication prescribed for treatment of his psychiatric symptoms. The examiner assigned a GAF score of 50 to 55. March 2009 private notes reflect that the Veteran was continuing to attend group therapy three times a week. He manifested agitation, sleeplessness, concentration difficulties, hypervigilance, sadness and rage. He described real and imagined enemies (wife, judge). In May 2009, the Veteran was described as in a state of high alert. He had paranoia, flight of ideas, an abnormal appearance, abnormal affect and mood, markedly abnormal thought content, diminished ability to get along with the public or with others. A private provider who had treated the Veteran since August 2005 provided an April 2009 opinion that the Veteran had regressed since that time (when, as noted above, a GAF score of 35 was assigned). The provider stated that the Veteran had lost his job three years ago because of impaired judgment. The provider noted that the Veteran had a verbal altercation at work. The provider noted that the Veteran had sought medical treatment on several occasions for chest pain, and a diagnosis of panic attacks was appropriate for these episodes. The provider described the Veteran as paranoid, vengeful, and indignant. The Veteran manifested cognitive derailment and self defeating thoughts, as manifested by his intent to seek damages from the Georgia family law system. If subjected to occupational stress, the provider opined, the Veteran would be "severely impaired" in his ability to refrain from injuring someone in the workplace. The provider also opined that the Veteran was too unstable for vocational rehabilitation. The provider did not assign a specific GAF score. The VA examiner who conducted a June 2009 VA examination found that the Veteran's symptoms of anxiety were mild, that the Veteran was not motivated to work, and assigned a GAF score of 70. An August 2009 letter to the Veteran from the Social Security Administration reflects that SSA rendered a fully favorable decision, that is, the Veteran was found to be disabled for SSA purposes from June 12, 2006, the date on which he apparently became unemployed following a verbal altercation at work. The documents from SSA include a compact disc (CD) which appears to include the complete SSA file. The CD reviewed by the Board was provided to VA by SSA; another copy of the CD was provided to VA by the Veteran. The Board concludes that the evidence establishes that the Veteran's PTSD meets the criteria for a 70 percent evaluation from August 3, 2005. At that time, a medical professional recommended that he be placed on leave. The Veteran was unemployed beginning June 12, 2006. Medical opinions establish that it was not safe for the Veteran to work, and that he was not able to participate in vocational rehabilitation. These opinions, together with the assigned GAF score, support a determination that the Veteran's PTSD was 70 percent disabling, on a schedular basis. The Veteran did not meet the criteria for a total schedular evaluation, however, as he did not have gross impairment in his thought processes or communication. Although his communications were abnormal, the abnormality was not so gross as to be equivalent to psychosis. The Veteran did not have persistent delusions or hallucinations, although he was paranoid and felt he had enemies. His behavior was not grossly inappropriate. He was still able to go out in public, participate in activities, and see his children. The psychiatric evaluations reflect that he did not present a persistent danger of hurting himself or others, although the providers did indicate that such danger was possible if he returned to work. There is no evidence that he manifested intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), had disorientation to time or place, and had memory loss for names of close relatives, his own occupation, or his own name. The written communications to the Board from the Veteran establish that he did not meet the criteria for a total (100 percent) schedular evaluation. The preponderance of the evidence supports a 70 percent evaluation, but is against an evaluation in excess of 70 percent. The discussion above reflects that the Board has considered staged ratings. Fenderson, supra. ORDER An increased initial evaluation from 10 percent to 30 percent for service-connected psychiatric disability, initially diagnosed as generalized anxiety disorder, later diagnosed as PTSD, prior to August 3, 2005, is granted, and a further increase to 70 percent, from August 3, 2005, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal for an increased initial evaluation for psychiatric disability is granted to this extent only. REMAND The records establish that, in addition to the psychiatric disability for which service connection is in effect, the Veteran has been granted service connection for sleep apnea, a lumbar spine disability, allergic rhinitis, hypertension, residuals of a left ankle injury. The Veteran has also been granted service connection for two other disabilities for which noncompensable evaluations are in effect. Excluding the Veteran's service-connected psychiatric disability, the Veteran's service-connected disabilities result in a 70 percent combined evaluation under 38 C.F.R. § 4.25. When the 70 percent evaluation assigned in this decision for the service-connected psychiatric disability is combined with the evaluations for the Veteran's other service-connected disabilities, a combined 91 percent evaluation results. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the issue is raised by the record. For example, the letter dated in November 2007 from his treating psychiatrist stated that he would not be able to maintain employment due to his PTSD. However, the RO has not adjudicated a claim for unemployability based on this recent evidence. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2008). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2008). The record shows that the appellant is currently unemployed. He alleges that his service connected disabilities prevent him from obtaining gainful employment. While the appellant has been afforded VA examination, an opinion as to his unemployability and the effect of his service connected disabilities on his employability was not rendered. The Board finds that an examination should be obtained to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service- connected disability, and then the issue should be adjudicated by the RO. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to assess the effect of his service-connected disabilities on his employability. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the appellant is unable to secure or maintain substantially gainful employment solely as a result of his service connected disability. The examination report must include a complete rationale for all opinions and conclusions expressed. Another examination is not required unless deemed necessary by the examiner. 2. If a total rating is not granted, send the Veteran and his representative an SSOC that includes a citation to 38 C.F.R. §§ 3.340, 3.341, and 4.16 and a discussion of how those regulations affects VA's decision with regard to a TDIU. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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. 2009). ______________________________________________ MICHAEL D. MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs