Citation Nr: 1120736 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 10-19 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial 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 disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in part, granted a 50 percent disability rating for PTSD effective March 31, 2008. A video conference hearing was held in April 2010 with the Veteran in Cleveland, Ohio, before the undersigned Veterans Law Judge, sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. During the aforementioned hearing, the Veteran submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2010) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran's PTSD is manifested by an inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, impaired impulse control with periods of violence, and significant deficiencies in work, family relations, and mood. CONCLUSION OF LAW The criteria for an initial 70 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1- 4.14, 4.125-4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2010). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to the initial adjudication of the Veteran's claims, a letter dated in April 2008 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran was also notified of the criteria for establishing an effective date and disability rating. See Dingess. In the Veteran's April 2009 notice of disagreement (NOD), he took issue with the initial disability ratings assigned and is presumed to be seeking the maximum benefits available under the law for the appealed issue. Dingess; see also AB v. Brown. Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued an April 2010 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The claimant was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran's service treatment records, VA treatment records, private treatment records, VA authorized examination reports, lay statements, and hearing transcript have been associated with the claims file. The Board specifically notes that the Veteran was afforded a VA examination with respect to his disability. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examination obtained in this case are adequate as it is predicated on a review of the claims file; contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and records the relevant findings for rating the Veteran's PTSD. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). 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). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged 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. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran was assigned a 50 percent rating under Diagnostic Code 9411. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). A 70 percent disability rating is assigned for 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. 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 from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 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, with some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. C. Evidence The Veteran underwent a private evaluation in April 2007 in connection with a lawsuit arising out of a motor vehicle accident. On examination, the Veteran showed no mood problems, and had no complaints about appetite, sleep, or depression. He joked and laughed with the evaluator. He was most anxious when discussing his parents, and showed slight anger. His orientation was very good. He showed some preoccupations and intrusive memories associated with many trauma that he had endured, but had no signs of psychosis. The evaluator assigned a GAF score of 85. A May 2007 letter from the Veteran's treating psychologist took issue with some of the findings of the April 2007 evaluation. However, he agreed with the conclusion that the Veteran was now cured and no longer troubled by PTSD. The Veteran submitted several lay statements dated May 2008 and July 2008. Collectively, they reported that the Veteran was very pessimistic in his speech, and experienced hyperactivity, depression, anger outbursts, and difficulty focusing. He lacked discretion when speaking with others and could be very hostile at times. He also built a bunker-like structure at his house and stocked it with food and other supplies. He also isolated himself from others, and had difficulties with confusion and memory. One of the statements was from a self-identified "healthcare professional." She stated that the Veteran had deep spells of melancholy that sometimes lasted for months. During these times, the Veteran lost a good deal of weight and developed viral infections. His depression eventually turned to anger, and the cycle repeated itself. The Veteran submitted his own statement in September 2008. He described various difficulties he had with employment over the years. The Veteran underwent a VA examination in October 2008. With respect to current symptoms, the Veteran reported having a difficult relationship with his family. There was a history of domestic violence, including one arrest. He reported difficulties with his occupational duties as a teacher. He felt that everyone else was too safety-conscious, and reported that he walked out on a mandatory film about blood borne pathogens. He also described an incident in which he was startled by a student who had tapped him on the shoulder and became very angry with the student. He had 17 jobs since service. His teaching career had lasted 10 years and was his most stable job. The Veteran reported that he had also built many fences and "bunkers" around his house "for protection." He experienced flashbacks, anger, hypervigilance, poor appetite, and difficulty sleeping. On examination, the Veteran's mood was depressed and his affect was constricted. His thoughts were logical and goal-directed, but his insight and judgment were poor. Speech was normal in rate and volume. The Veteran denied any delusions, hallucinations, or suicidal or homicidal ideation. The examiner noted that the Veteran's PTSD symptoms had significantly impaired his relationship with his family. They also impaired his ability to exercise good judgment at work, as there was evidence that the Veteran was careless about safety measures. His GAF score was 51. The examiner stated that the Veteran was "on the borderline" between being able and unable to work. VA treatment records dated April 2009 reflect complaints of agitation, anger, anxiety, panic attacks, and nightmares. The Veteran did not get along well with his coworkers and generally kept to himself. He stated that employers and coworkers "say I scare people" and "call me weird." He was emotionally numb and detached from other people. In April 2009, the Veteran submitted evidence of his 1998 termination from a teaching position for instructional deficiencies. He stated that he was laid off from this job and others like it because his supervisors had taken a personal dislike to him. The Veteran submitted a June 2009 letter from his employer. The Veteran worked as a teacher, and his employer stated that the Veteran had difficulty following school directives, meeting deadlines, taking attendance, and passing out information to students. An adult assistant was necessary to monitor these tasks. The school had also received complaints from students and parents who were concerned with the military structure of the class and references to military topics. The Veteran had difficulty maintaining conversation, and at times seemed disoriented or unfocused. VA treatment records dated September 2009 and November 2009 show the Veteran had continued difficulty at his teaching job. He was told by the principal to stay home on Veterans Day, and asked about the treatment he was receiving for PTSD. He felt that his current job was following the pattern of the other 17 jobs he had lost since his return from Vietnam. The Veteran slept about 2 to 4 hours a night and had nightmares. He treated his condition with Prozac, which provided some relief. On examination, the Veteran was fully oriented and spoke with a normal rate and tone. His mood was mildly dysthymic and his affect was congruent. Concentration and thought processes were normal. Insight and judgment were adequate. The Veteran denied any suicidal or homicidal ideation. VA treatment records dated February 2010 show the Veteran anticipated being terminated from his job within a couple weeks due to another complaint from a parent. In May 2010, he reported that he was, in fact, terminated. The Veteran's symptoms were otherwise unchanged from November 2009. In a separate February 2010 statement, the Veteran attached documentation from his employer regarding absences from work and a written complaint that had been filed regarding stories and comments the Veteran had made in his class that were inappropriate and unrelated to course content. He also stated that his wife had left him. The Veteran also submitted a March 2010 letter from the union official who represented the Veteran during his terminator proceeding. He stated that the Veteran was not a team player and was considered to be "too military" by administrators. He isolated himself from the entire staff. The principal of the school also had concerns regarding the safety of the Veteran and others around him. VA treatment records dated June 2010 reflect that the Veteran's wife was now living with their daughter. The Veteran felt he was better off by himself at this point. He set up a tent in his back yard and made it look like his Vietnam experiences, which caused his wife to leave. He continued to always feel alert and have flashbacks. He also experienced anger, mood swings, intrusive memories, and emotional detachment. On examination, the Veteran's mood was anxious and agitated, and his affect was blunted but congruent with his mood. He admitted to some difficulty with concentration and focus. Speech and thought content were normal. Insight was adequate. The Veteran denied any delusions or hallucinations. The Veteran submitted an August 2010 letter from a private psychiatrist. She stated that she had treated the Veteran since December 2008. She stated that he had been fired from multiple jobs due reactions brought on by flashbacks to Vietnam. While it was unclear why he was dismissed from his most recent job, there were complaints that his behavior and teaching style were not appropriate, and parents objected to the Veteran discussing his Vietnam missions with students. She described the Veteran's relationship with his wife as "tumultuous." VA treatment records dated August 2010 show the Veteran continued to experience nightmares, hypervigilance, and increased startle response. He avoided people, places, and things that reminded him of Vietnam. When exposed to such things, he had increased anxiety, including a racing heartbeat, dizziness, and increased sweating. His symptoms had progressively worsened since he became unemployed. On examination, the Veteran was fully oriented. His mood was anxious and agitated, and his affected was blunted and congruent. His speech and thought processes were normal, but he admitted to difficulty with concentration and focus. Insight was adequate. He denied any delusions or hallucinations. The Veteran testified at a Board hearing in September 2010. He treated his condition with Prozac and a sleep aid. He attended individual therapy sessions every six weeks with VA and every two months with his private psychiatrist. He stated that he slept about 4 or 5 hours a night and had difficulty with nightmares. His medication provided some relief from these symptoms. He stopped driving, as this reminded him of his Vietnam experiences, and allowed his driver's license to expire. He lost his recent teaching job because some of the parents and administrators did not like the way he managed students. There were also concerns about inappropriate comments and safety. Since leaving that job, his only job was as a census worker. This lasted about 2 weeks. With respect to earlier evaluations that indicated the Veteran was "cured" of his PTSD, he testified that these records were generated by an opposing party during a lawsuit arising out of a motor vehicle accident. He denied any suicidal or homicidal ideation. He slept in a tent in his backyard. He spent most of his time there, engaging in activities such as reading and woodwork. He kept himself very isolated, and erected bunkers and perimeters around his property. The Veteran also submitted undated statements from his wife. She stated that the Veteran had a very exaggerated startle response, particularly when sleeping. He always had to sit in places with good visibility and an "easy escape" when at the movies or a restaurant. He sometimes had very dark, angry moods and isolated himself for days at a time. He also built bunkers out of large dirt mounds, and used fences and trees to isolate their house. He also refused to put numbers on their mailbox. He would get physically violent, and she had called the police during the most recent incident. The Veteran submitted a copy of a petition for an order of protection filed by another woman who felt threatened by the Veteran's behavior. He also submitted a copy of his expired driver's license. D. Analysis Based on the evidence of record, the Board finds that an initial 70 percent rating is warranted for PTSD. He has demonstrated severe deficiencies in the areas of work and family relations. Specifically, he experienced anger and impaired impulse control with periods of violence. The Veteran and his wife both acknowledged instances of physical abuse. After his wife left, the Veteran stated that he was "better off alone." The Veteran was terminated from his job as a teacher after several complaints from parents and administrators regarding inappropriate behavior and comments towards students. There were also concerns regarding the students' safety. Despite these complaints, the Veteran was unable to adjust his behavior. The Veteran also isolated himself a great deal, both at work and at home. His wife described instances when the Veteran would isolate himself for days at a time. He also built bunkers and fences on his property and was wary of having people around his home. These symptoms, along with other reported symptoms such as nightmares, flashbacks, and panic attacks, correspond to an overall disability picture consistent with a 70 percent rating under Diagnostic Code 9411. A higher 100 percent rating is not warranted as the Veteran's PTSD was not manifested by symptoms such as suicidal ideation, gross impairment in thought processes or communication, disorientation as to time or place, an intermittent inability to perform activities of daily living , or memory loss for names of close relatives, or for the Veteran's own occupation or name. The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as flashbacks, anger and mood swings. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, as with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned rating. E. Extraschedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disabilities. Indeed, it does not appear from the record that he has been hospitalized at all for those disabilities. While the Veteran submitted evidence of the effect of his PTSD on his employment, there is no persuasive evidence in the record to indicate that the service-connected disability on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. In particular, the assigned 70 percent disability rating for PTSD contemplates a very significant impact on the Veteran's employment. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disabilities have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER An initial 70 percent rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND In VA treatment received in May 2010, and during his September 2010 Board hearing, the Veteran asserted that his is unable to work due to his service-connected PTSD. The Board notes that although the issue of TDIU has not been certified on appeal, the Board does have jurisdiction to decide the claim. In this regard, the Board notes that 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. 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. Accordingly, the Board concludes that it does have jurisdiction over the issue of the Veteran's entitlement to TDIU, and that issue has been added, as listed above. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised); see also VAOPGCPREC 12-2001 (July 6, 2001) (further expansion on the concept of when an informal claim for TDIU has been submitted). As such, the issue is properly before the Board and should be adjudicated by the RO on remand. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a 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 disability has 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). The Veteran was afforded a VA examination in October 2008 as part of his claim for PTSD. However, this examiner stated that the Veteran was "on the borderline" between being able and unable to work. Therefore, an additional examination is warranted. The Veteran should be scheduled for a VA examination, and the examiner should be asked to conduct a psychiatric examination of the Veteran, review of the medical evidence, and provide a medical opinion addressing the question of whether the Veteran's service-connected disability makes him unemployable. See 38 U.S.C.A. § 5103A(d) (West 2002); Friscia v. Brown, 7 Vet. App. 294 (1995). Such opinion must be based upon consideration of the Veteran's current medical condition as well as his documented history and assertions, to include employment history and education, and medical evidence associated with the record. 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU. 2. The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claim for a TDIU. The RO/AMC's letter should specifically explain how to establish entitlement to a TDIU. 3. The Veteran should be afforded a mental disorders examination to ascertain the impact of his service-connected disability (PTSD) on his unemployability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner should opine as to whether it is as likely as not (50 percent or more probability) that the Veteran's service-connected disability, without consideration of his nonservice- connected disabilities or age, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010). 5. After the requested development has been completed, the AMC/RO should adjudicate the merits of the appellant's claim for a TDIU based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs