Citation Nr: 1120130 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 10-44 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability evaluation for posttraumatic stress disorder (PTSD), rated 70 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1970, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal, the Combat Infantryman Badge the Air Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2009 and November 2009 decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). For the reasons detailed below, the Board finds that the Veteran's claim seeking entitlement to TDIU was raised while his claim for an increased disability evaluation for PTSD, rated 70 percent disabling, was pending in appellate status. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Thus, the Veteran's TDIU claim is part-and-parcel of the aforementioned increased rating claim and must be addressed in this context. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to a TDIU. As reflected in his October 2010 Appeal to Board of Veterans' Appeals (VA Form 9), he reports that, while he receives Social Security Administration (SSA) benefits based on orthopedic conditions, his PTSD symptomatology renders him unemployable. His PTSD is rated 70 percent disabling, making the Veteran schedularly eligible for TDIU consideration. See 38 C.F.R. § 4.16(a) (2010). Moreover, a private December 2010 medical record suggests that the Veteran's PTSD has some impact on his ability to sustain gainful employment. Thus, the Board has no discretion and must remand the claim for appropriate VA examination. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Additionally, the Board observes that the Veteran receives regular treatment related to his service connected PTSD and bilateral hearing loss, however, VA treatment records, dated since November 2009, have not been associated with the claims file. Moreover, the Veteran has submitted a December 2010 medical record that appears to have been generated by a private medical provider, but no other treatment records from this provider are of record. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). For this reason, the claim must be remanded. Finally, in a June 2009 rating decision, the RO granted the Veteran a 70 percent disability evaluation for PTSD, effective April 23, 2009. In a statement received in December 2009, the Veteran expressed disagreement with the rating assigned in the aforementioned rating action. The Board accepts the Veteran's statement as a timely notice of disagreement with the disability evaluations assigned for PTSD. See 38 C.F.R. § 20.201 (2010). To date, however, the RO has not issued the Veteran a statement of the case with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand the issue to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran to ascertain any private physician(s) and/or facility(ies) where he received any psychiatric and hearing loss treatment(s) and/or hospitalization(s), to include from the author of the December 2010 medical record. Thereafter, the RO should undertake all appropriate efforts to attempt to obtain any indicated records. All development efforts should be associated with the claims file. 2. The RO must obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's PTSD and bilateral hearing loss, dated since November 2009. Any negative response should be in writing, and associated with the claims file. 3. After associating all outstanding records with the claims file, the RO should schedule the Veteran for an appropriate VA examination, as to ascertain the cumulative impact his service connected disabilities have on his employability. The claims file should be made available to and reviewed by the examiner. All tests deemed necessary by the examiner must be performed. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities (bilateral hearing loss and PTSD) jointly on his employability. In doing so, the examiner should report all pertinent psychiatric findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner should opine as to whether the Veteran's service-connected psychiatric and bilateral hearing loss disabilities, without consideration of his non-service connected disabilities, render him unable to secure or follow a substantially gainful occupation for which he would otherwise be qualified. Finally, if the Veteran's service connected disabilities do not cumulatively render him unemployable, the examiner should suggest, if possible, the type(s) of employment in which the Veteran would be capable of engaging with his current service connected disabilities, given his current skill set and educational background. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 4. The RO must issue a statement of the case with respect to the Veteran's claim seeking an increased disability evaluation for PTSD, rated 70 percent disabling. The statement of the case must include notification of the need to timely file a substantive appeal to perfect the Veteran's appeal on this issue. 5. Then readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ STEVEN D. REISS 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).