Citation Nr: 1121891 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 08-00 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1951 to June 1954 and with the United States Air Force from January 1955 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). In that rating decision, the RO continued a 10 percent evaluation for PTSD and denied the claim for TDIU. In March 2011, the Veteran testified before the undersigned during a hearing at the RO. During the hearing, the undersigned identified the issue on appeal and he noted what pertinent evidence was outstanding and might assist in substantiating the claim. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. 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 was last afforded a VA examination in April 2007 to determine the severity of his service-connected PTSD. During the March 2011 Boarding Hearing, the Veteran asserted that his disability has worsened since his last VA examination. See March 2011 Board Hearing transcript, page 7. Moreover, during the hearing, the Veteran testified that he has been receiving continuous counseling and prescription treatment for his PTSD symptomatology, which indicates that his disability might have worsened since his last examination. Given the length of time since the last VA examination and the Veteran's reports a worsening in his disability, a new VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Thus, a remand for another medical examination is needed to make a decision in this case. Prior to any examination, the RO/AMC should obtain any outstanding records of pertinent VA and private treatment, and associate them with the claims folder. In particular, the Board notes that the record does not contain any pertinent treatment records after 2007. The Veteran also seeks entitlement to TDIU based on the severity of his service-connected disabilities. Specifically, the Veteran asserts that his physical and mental disabilities are so severe that it prevents him from obtaining and maintaining substantially gainful employment. As explained below, the Board finds that additional development is necessary prior to the adjudication of this claim. Here, the Veteran meets the minimum percentage requirements under 38 C.F.R. § 4.16(a). The Veteran has been granted service connection for bilateral hearing loss (rated as 40 percent disabling), diabetes mellitus (rated as 20 percent disabling), tinnitus (rated as 10 percent disabling), peripheral neuropathy in the left lower extremity (rated as 10 percent disabling), peripheral neuropathy in the right lower extremity (rated as 10 percent disabling), glaucoma (rated as 10 percent disabling), and PTSD (rated as 10 percent disabling). The combined rating is 70 percent. The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable. The Board finds that additional development is needed prior to answering this question. Foremost, a remand is necessary for a new VA examination to obtain a medical opinion in conjunction with the Veteran's TDIU claim. The Board notes that while the Veteran was afforded five VA examinations in April 2007, one for each of his service-connected disabilities, only three of the examiners provided a medical opinion regarding the question of the Veteran's employability with regard to the specific disability being evaluated and none of those medical opinions considers the impact of all his service-connected disability, in combination, on his employability. Moreover, the Veteran has asserted that his symptomatology due to PTSD has worsened since the April 2007 VA examination. Given the Veteran's assertion as to the increase in the severity of his PTSD and the inadequacy of the previous April 2007 examination reports to assess the impact of his disability on his employability, the Board finds that a new VA examination is in order. The examiner should be asked to provide an opinion on the impact of all of the Veteran's service-connected disabilities on his ability to obtain and retain substantially gainful employment. Therefore, the RO/AMC should schedule the Veteran for an appropriate VA medical examination(s) to ascertain the severity of his service-connected disabilities and their impact on his ability to obtain and retain substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. By appropriate means, and with any necessary assistance from the Veteran, the RO/AMC should seek to identify and obtain any outstanding records of pertinent medical treatment that are not yet on file. If any identified record cannot be obtained, then documentation to that effect should be added to the claims file. The Veteran should also be provided with an opportunity to submit such reports. 2. After all the available records have been associated with the claims folder, the RO/AMC should schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service- connected PTSD. In the examination report, the examiner should record all signs and symptoms necessary for rating the Veteran's PTSD under the applicable rating criteria. The examiner should also comment as to the impact of PTSD on the Veteran's daily activities and his ability to maintain employment. If possible, the examiner should identify any prior treatment records that indicate an increase in severity of the Veteran's symptomatology due to his PTSD. The examiner should also be asked to ascertain the impact of the Veteran's PTSD on his ability to obtain or sustain employment. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disability on the Veteran's employability. 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 non-service- connected disabilities or his age, renders him unable to secure or follow a substantially gainful occupation. A complete rationale should be provided for any opinion expressed. If it is not possible for the examiner to answer any of the inquiries list above, the examiner should so state. 3. After all the available records have been associated with the claims folder, the RO/AMC should schedule the Veteran for a VA examination for the purpose of determining the impact that his service-connected disabilities have on his ability to maintain substantially gainful employment. The claims folder must be made available to the examiner for review in conjunction with the evaluation. Following the history and clinical evaluation, and any tests that are deemed necessary, the examiner is requested to render an opinion as to whether the Veteran's service-connected disabilities render him unable to secure or maintain substantially (more than marginal) gainful employment consistent with his education and employment experience. In so doing, the examiner should also address the impact, if any, of the Veteran's non-service connected disabilities on his ability to maintain substantially gainful employment. A complete rationale should be provided for any opinion expressed. If it is not possible for the examiner to answer any of the inquiries list above, the examiner should so state. 4. Thereafter, the RO/AMC should review the claims folder to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO/AMC should then readjudicate the claims on appeal. If any benefit sought remains denied, the RO/AMC should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period 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 unless 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). No action is required of the appellant until further notice. The Board will take this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655. [Continued on following page.] These claims 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).