Citation Nr: 1121371 Decision Date: 06/02/11 Archive Date: 06/09/11 DOCKET NO. 09-32 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for a heart condition has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Concerning the Veteran's claim for an increased rating for PTSD, a January 2009 private psychosocial assessment indicates that the Veteran is unemployable due to his PTSD. The Board notes that the September 2008 VA examiner did not comment concerning the effect of the Veteran's PTSD on his ability to maintain gainful employment. In a January 2009 notice of disagreement, the Veteran additionally indicated that he did not believe the September 2008 examination report captured the full extent of his psychiatric disability. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held as follows: "[W]e hold that 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 involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation". The Court also stated that "when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." Id. at 454. Hence, the Veteran's claim for an increased rating for PTSD includes consideration of whether TDIU is warranted under the provisions of 38 C.F.R. §§ 3.340, 3.341, 4.16. Accordingly, on remand, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU and afforded relevant medical examination(s) to determine the current level of his psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with notice of how to substantiate a claim for TDIU. 2. Schedule a VA psychiatric examination for the Veteran to determine the current severity of the Veteran's PTSD. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. All symptomatology should be described in detail. The examiner should also provide a Global Assessment of Functioning score for the Veteran's PTSD. The examiner is informed that the Veteran is service connected for posttraumatic stress disorder and diabetes mellitus. He was awarded Social Security benefits based upon heart disease and chronic obstructive pulmonary disease. In the Social Security records, there was also a showing of low back problems. The examiner is asked to render an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected disabilities alone, without reference to any non-service connected disabilities, prevent him from maintaining substantially gainful employment. A rationale for all opinions should be provided. 3. The Veteran should additionally be afforded a general VA examination to determine unemployability, if necessary. 4. When the development requested has been completed, and the RO/AMC has ensured compliance with the requested action, this case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ____________________________________________ Alexandra P. Simpson Acting 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).