Citation Nr: 1120716 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 08-30 051A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent prior to February 2, 2008, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970, including service in the Republic of Vietnam. His decorations include the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that, in pertinent part, granted entitlement to service connection for post traumatic stress disorder (PTSD) and evaluated the condition as 10 percent disabling, effective April 17, 2006. The Veteran filed a timely notice of disagreement in July 2008. The RO increased the evaluation for the Veteran's PTSD to 30 percent disabling, effective April 17, 2006, and issued a statement of the case dated in September 2008. The Veteran filed a statement in October 2008 requesting a higher evaluation for his service-connected PTSD. This statement was accepted by the RO as a substantive appeal with respect to the issue of an increased rating for PTSD. In December 2009, the RO increased the evaluation for the Veteran's service-connected PTSD to 70 percent disabling, effective February 2, 2008. As the Veteran has perfected an appeal as to the initial rating assigned for his service-connected PTSD, the Board has characterized the issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. The Veteran's representative, in April 2011, contends that entitlement to individual unemployability is warranted based on the Veteran's April 2011 letter describing how he had to leave his job because of his PTSD. The Board views this evidence as a claim of entitlement to a TDIU. In this regard, the Board notes that in Rice v. Shinseki, supra, the United States Court of Appeals for Veteran's Claims (the "Court") held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As such, the issue is properly before the Board and should be adjudicated by the RO on REMAND. Similarly, the issue of entitlement to an evaluation in excess of 70 percent from February 2, 2008 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. FINDING OF FACT Prior to February 2, 2008, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood and anxiety, anger, irritability, intrusive recollections, violent dreams and nightmares, sleep impairment, alcohol abuse, social isolation, disturbances of motivation and mood, and some difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, the criteria for an initial disability rating of 50 percent for PTSD prior to February 2, 2008, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.125-4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. By way of letters dated in June 2006 and July 2008, the Veteran was furnished notice of the type of evidence needed in order to substantiate the claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was generally informed that he should send to VA evidence in his possession that pertains to the claim and advised of the basic law and regulations governing the claim, the cumulative information and evidence previously provided to VA (or obtained by VA on the Veteran's behalf), and provided the basis for the decisions regarding the claim. The Veteran was provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claim, and he was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on his behalf. In this regard, with respect to the Veteran's initial increased rating claim for his service-connected PTSD, the Court in Dingess v. Nicholson held that upon receipt of an application for service connection, VA is required to notify a claimant of what information and evidence will substantiate the elements of the claim for service connection, including that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, however, the Court also declared, that "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Id. at 491. Such is the case here, and therefore, no further VCAA notice is required with respect to the Veteran's claim for an initial higher disability rating for his PTSD; and under the circumstances, there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In particular, the information and evidence associated with the claims files consists of the Veteran's service records, private and VA post-service treatment records and reports, VA examinations, and written statements submitted by the Veteran and his representative in support of the claim. Based on the foregoing, there is no identified evidence that has not been accounted for with respect to the Veteran's claim and, under the circumstances of this case, VA has satisfied its duty to assist the Veteran. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Increased rating for PTSD prior to February 2, 2008. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that Veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See also Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran was assigned a 30 percent rating under Diagnostic Code 9411, effective prior to February 2, 2008. A 10 percent rating is warranted where the disability is productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted where the disability is productive of 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 where the disability is productive of 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 70 percent rating is warranted where the disability is 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: 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 100 percent rating is warranted where the disability is productive of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly 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. 38 C.F.R. § 4.130. In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that, unless the symptoms and/or degree of impairment due to a service-connected psychiatric disability can be distinguished from any other diagnosed psychiatric disorders, e.g., major depression and alcohol dependence, VA must consider all psychiatric symptoms in the adjudication of the claim. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. The medical evidence in this case prior to February 2, 2008 consists of post-service treatment records and a VA examinations dated in September 2006. In a February 2006 PTSD screening, the Veteran was noted to have social anxiety, isolation, and verbal agitation at times. He was noted to self medicate with etoh. The Veteran was married with children and grandchildren. He was noted to have a stable financial status working in construction. He enjoyed motorcycles and horses and was noted to live in a home with his wife. The Veteran was alert and attentive, cooperative and reasonable, and oriented x3, with appropriate grooming. His mood was depressed and the Veteran reported flashbacks and nightmares from service. The Veteran was diagnosed with chronic PTSD and alcohol abuse. He was assigned a GAF score of 45/70. In March and May 2006, the Veteran was noted to have major flashbacks and nightmares, and was hesitant to talk about his experiences in Vietnam. The Veteran was also noted to have been having episodes of agitation with customers in his business and indicated that he could not tolerate his grandchildren visiting without having to leave the room. The physician found that the Veteran did not have thoughts of harming himself or others. The Veteran was prescribed medication. In October 2006, the Veteran was noted to be doing better and that the Veteran and his wife were getting along better than they had in years. The Veteran's issue with alcohol was discussed. The Veteran was seen for his PTSD in December 2006. The Veteran was indicated to have numerous daily flashbacks and nightmares several times weekly. He was found to have no thoughts of harming himself or others. In March 2007, the Veteran noted to have had significant flashbacks a few weeks back related to hearing chopper blades. The Veteran was being seen for a follow-up and was noted to doing much better. He was only drinking occasionally. The Veteran was noted to stay busy and work long hours. The Veteran was found to have some issues with his wife, but that they were more stable now. The Veteran denied being a danger to himself or others, but was indicate to have many episodes of agitation with physical fights in the past. The Veteran was seen in May 2007 for PTSD. He indicated that he had a nightmare two weeks prior. Otherwise, the Veteran was noted to be doing well, not flying off the handle, and getting along better with his wife. The Veteran was seen in December 2007 for his PTSD. The Veteran reported mood swings and anxiety to the point where he reported that he was unable to tolerate these at times. The Veteran indicated that he had no further thoughts of harming himself or others, but was still having family issues. He was noted to be coping with flashbacks and nightmares, and that they are more often than before The Veteran was afforded a VA examination in connection with his PTSD claim in September 2006. The Veteran was noted to have been married to his wife for 32 years. The Veteran had two children and two grandchildren that he and his wife would visit regularly. The Veteran was noted to be self-employed full time in the construction business for the past 11 years. The examiner indicated that the Veteran had no prior history of psychiatric or substance abuse and was first seen for symptoms of PTSD in February 2006. The Veteran's family and military history were noted in the report. The Veteran reported symptoms such as intrusive thoughts and images, nightmares, restless sleep, yelling out at night, occasional flashbacks. The Veteran and his wife were noted to no longer sleep in the same room. The Veteran reported that he would avoid watching movies or news reports related to war, and indicates that he prefers being alone. The Veteran indicated that he is no longer interested in hunting, which he enjoyed prior to combat. The Veteran was reported to have angry outbursts and irritability, and reported that his wife is a nervous wreck in his presence, not knowing when he would go off. The Veteran reported that his oversensitivity and irritability have increased over the past 10-12 years. The Veteran was noted to have difficulty with concentration, hypervigilence, and exaggerated startle response. He was also noted to have depressed mood, some panic symptoms, and alcohol abuse. Testing revealed moderate to severe symptoms of depression, and PTSD symptoms. Upon examination, the Veteran was indicated to be alert and oriented x4. Grooming and hygiene were fair, and he was neatly dressed in casual attire. Eye contact was fair and speech was normal in rate and rhythm. Mood was depressed with blunted affect, but thoughts were logical and goal oriented with no evidence of paranoia, delusions, or hallucinations. The Veteran denied current suicidal or homicidal ideations, plans or intentions. Immediate, recent and remote memory was grossly intact , and insight and judgment were fair. The Veteran was diagnosed with PTSD and depressive disorder NOS. He was given a GAF score of 60. Based on the evidence of record, the Board finds that a higher 50 percent rating is warranted in this case prior to February 2, 2008. The evidence indicates that The Veteran had some ongoing difficulty in establishing and maintaining effective relationships. The medical evidence also indicates depressed mood and anxiety, irritability and anger issues, intrusive recollections, and nightmares, persistent sleep problems, and alcohol abuse. The Veteran indicated that he would spent time by himself and with his immediate family. GAF scores of 60 and 45/70 indicate a mild to moderate level of impairment. These findings correspond to a level of impairment consistent with the 50 percent disability rating. A higher 70 percent rating is not warranted in this case prior to February 2, 2008. The Veteran reported difficulty adapting to social and stressful circumstances, among other symptoms, there was no indication that his PTSD was productive of 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, spatial disorientation, and neglect of personal appearance and hygiene. And while there was evidence of some irritability and anger issues, there was no indication that the Veteran's behavior was manifested by periods of violence. Based on these findings, a higher 70 percent rating is not warranted for the period prior to February 2, 2008. In addition, with respect to the Veteran's claim, the Board has also considered the statements that his disability was worse that evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his service-connected disability, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Finally, the record does not establish that the schedular criteria are inadequate to evaluate the Veteran's disability so as to warrant the assignment of a higher evaluation on an extra-schedular basis prior to February 2, 2008. In this regard, the Board notes that there is no showing that the Veteran's disability resulted in marked interference with employment (beyond that contemplated in the assigned evaluation). In addition, there was no showing that the disability necessitated frequent periods of hospitalization, or that it otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of such factors, the criteria for submission for assignment of extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial rating of 50 percent for PTSD is granted for the appeal period prior to February 2, 2008, subject to the laws and regulations governing the award of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to the evaluation of the Veteran's PTSD from and after February 2, 2008, a review of the medical evidence in this case reveals that the appellant's last VA examination in relationship to his service-connected PTSD took place in October 2009. At that time, the Veteran was diagnosed with PTSD with depression and panic, severe and chronic, and assigned a GAF score due to PTSD of 50. The examiner, however, opined that there was not total occupational and social impairment due to PTSD signs and symptoms. Since that examination, the Veteran has become unemployed and has indicated that his PTSD symptoms make it so that he can no longer work. The Veteran and his representative submitted statements in April 2011 that indicate a deteriorating picture of the Veteran's PTSD since the October 2009 examination. In light of the foregoing, it appears to the Board that a medical question has been presented as to whether the Veteran's service-connected PTSD has increased in severity since his October 2009 VA examination. As such, the Board finds that a new VA examination is warranted. Although the mere passage of time does not necessarily require that a VA examination be rescheduled, where the evidence of record does not reflect the current state of a Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In addition, the Board notes that the Veteran is currently unemployed and that the October 2009 VA examiner stated that the Veteran's PTSD symptoms do affect his employment and social functioning. The Veteran's representative, in April 2011, also contends that entitlement to individual unemployability is warranted based on the Veteran's April 2011 letter describing how he had to leave his job because of his PTSD. The Board views this evidence as a claim of entitlement to a TDIU. In this regard, the Board notes that in Rice v. Shinseki, supra, the United States Court of Appeals for Veteran's Claims (the "Court") held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for total disability rating, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. As such, the issue is properly before the Board and should be adjudicated by the RO on remand. In this regard, the board notes that total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340; 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court stressed that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). In this case, the Veteran is currently service-connected for PTSD, evaluated as 70 percent disabling, pleural cavity injury, evaluated as 30 percent disabling, and scar and bilateral hearing loss, each evaluated as noncompensable. The Board therefore finds that the Veteran has met the schedular percentage criteria for a total disability rating based on individual unemployability, and should be afforded a examination in connection with this claim. Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his PTSD and other service-connected disabilities. Here, the Board notes that the Veteran testified that he has been treated at the Memphis VA Medical Center. Records from this facility dated since December 2009 should be associated with the Veteran's claims file. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to her claims that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. In regards to the Veteran's claim, the RO should ensure that all notification and development action required by the VCAA and implementing VA regulations is completed, including the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A and 5107. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO should specifically afford the Veteran and his representative the opportunity to submit additional argument and evidence and to request a hearing on the claim for a total disability rating for compensation based on individual unemployability. 2. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his PTSD and other service-connected disabilities. This should specifically include treatment records from the Memphis VA Medical Center dated since December 2009. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. After obtaining the above-referenced records, the RO should afford the Veteran a VA examination in order to assess the current severity of his PTSD. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must note in the examination report that the claims file was in fact made available for review in conjunction with the examination. The examination report should include a description of the Veteran's symptoms, clinical findings and associated social and industrial impairment that has been and is attributed to his service-connected PTSD. In providing the requested medical opinions, the examiner should provide medical findings in terms consistent with the current criteria for rating mental disorders under 38 C.F.R. § 4.130, Diagnostic Code 9411, should assign a Global Assessment of Functioning score, and should explain the meaning of the numerical score assigned to the Veteran's PTSD. All findings should be reported in detail accompanied by a complete rationale. The examiner should ensure that all testing deemed necessary is accomplished to assess the appellant's employment history, educational background, and day-to-day functioning. After examining the Veteran, the examiner should also comment generally on the functional and industrial impairment caused by the Veteran's service-connected disabilities and indicate whether, without consideration of his age or nonservice-connected disabilities, the Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After the above is completed, the RO should readjudicate the Veteran's claim for an increased rating for PTSD and adjudicate the claim for a total disability rating for compensation based on individual unemployability (TDIU). If either the increased schedular rating or the TDIU is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case ("SSOC") on these issues. The RO should allow appropriate time for the appellant or his representative to respond to the SSOC and then return the matter to the Board for further review. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs