Citation Nr: 1111908 Decision Date: 03/24/11 Archive Date: 04/06/11 DOCKET NO. 06-37 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active duty service from December 1964 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Boston Regional Office (RO) of the Department of Veterans Affairs (VA). In an April 2010, decision, the Board denied the Veteran's claim for an increased rating and remanded his claim for a TDIU to the RO, via the Appeals Management Center (AMC), in accordance with the recent Court of Appeals for Veterans Claims (Court) decision in Rice v. Shinseki. The Veteran appealed the denial of an increase and in an October 2010 order, the Court vacated the April 2010, decision and remanded the matter back to the Board in accordance with an October 2010, Joint Motion for Remand filed by the parties. Then, in November 2010, the AMC issued a supplemental statement of the case, denying the claim for a TDIU. The AMC then returned this matter to the Board. Consequently, both claims are now before the Board as indicated on the title page. The Board notes that during the pendency of this appeal, the Veteran underwent two periods of inpatient psychiatric treatment. For these two periods of inpatient treatment, a temporary 100 percent rating was assigned; from June 25, 2007 until September 1, 2007, and again from September 15, 2008 until November 1, 2008. Those periods are not herein at issue. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In the October 2010, Joint Motion, the parties indicated that in the April 2010, decision, the Board did not properly analyze whether referral for consideration of an extraschedular rating was necessary in the instant case. Accordingly, a remand was required so that the Board could appropriately perform this analysis. Subsequently, the appellant's attorney submitted a March 2011, private psychological evaluation report. In the report, the psychologist found that the Veteran's condition met the criteria for an increase in his disability rating for PTSD to 70 percent retroactive to November 16, 2005. He also found that despite begin currently employed, the Veteran met the criteria for a TDIU rating, indicating that the Veteran's current employment as a custodian at a local high school was "tantamount to sheltered employment." The psychologist assigned a global assessment of functioning (GAF) score of 38. The Board notes that the most recent documentation of mental health treatment of record is from October 2008, nearly two and 1/2 years ago. Moreover, as it appears that the Veteran receives ongoing mental health treatment, to make an appropriate decision concerning the Veteran's current level of psychiatric disability, a remand is necessary in order to obtain any available mental health treatment records from October 2008 to the present. Upon obtaining all available records, the RO should then schedule the Veteran for a VA psychiatric examination to assess the current severity of his PTSD. This assessment should include a review of the claims file, including the updated mental health treatment records. The examiner should also provide an opinion as to whether or not the Veteran is currently unemployable due to his service connected disabilities. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain any outstanding VA mental health records from October 2008 to the present. The RO should also ask the Veteran to identify any additional sources of treatment or evaluation he has received for psychiatric disorder and should secure copies of complete records of the treatment or evaluation (which are not already of record) from all sources identified. 2. The RO should contact the Veteran and have him explain/detail his employment situation. He should indicate whether he is still employed, and if so, he should detail the hours worked and the duties performed. 3. The RO should then arrange to have the Veteran scheduled for a VA examination by a psychiatrist or psychologist. The examiner should review all pertinent documentation in the claims file, including the most recent March 2011. private psychological evaluation report; examine the Veteran; fully describe all psychiatric symptoms and manifestations attributable to his PTSD; and discuss the impact of these symptoms and manifestation on the Veteran's social and occupational functioning. A GAF score should also be provided. Additionally, the examiner should discuss the extent to which the Veteran's service connected PTSD, tinnitus and hearing loss, irrespective of any nonservice-connected disabilities, interfere with his ability to pursue or maintain gainful employment. In conjunction with this opinion, the examiner should specifically consider the March 2011, private psychologist's opinion that the Veteran's current custodial job is "tantamount to sheltered employment." 4. The RO should then readjudicate the claim for increase for PTSD. If it remains denied, the RO should issue an appropriate supplemental statement of the case and provide the veteran and his representative the opportunity to respond. 5. If an increased rating for PTSD is denied, and as a result the Veteran continues not to meet the schedular criteria for an award of a TDIU, the RO/AMC should consider whether to refer the Veteran's claim for TDIU to the Under Secretary for Benefits or Director of Compensation and Pension Service for extraschedular consideration pursuant to the provisions of 38 C.F.R. § 4.16 (b). An extraschedular rating under 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96 (Aug. 16, 1996). If the claim is submitted, documentation, including the response from the Under Secretary for Benefits and/or Director of Compensation and Pension Service should be included in the claims folder. If the claim is not submitted, the reasons for deciding not to do so should be spelled out as part of the action described in the next paragraph. 6. Thereafter, the RO should readjudicate the Veteran's claim for a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). If it remains denied, the RO should issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. 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. 2010). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).