Citation Nr: 1122250 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 02-16 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial disability rating, greater than 50 percent, for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) in September 2010, which vacated a January 2010 Board decision and remanded the case for additional development. The issue initially arose from a March 2002 rating decision by the Boston, Massachusetts Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a 30 percent rating, effective October 29, 2001. A rating action in March 2004 increased the rating to 50 percent, effective October 29, 2001. In October 2004, the Board denied the Veteran's claim of entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran appealed the Board's decision to the Court. In an order issued in June 2005, the Court vacated the Board's October 2004 decision and remanded the case to the Board for appropriate action consistent with the matters raised in the Joint Motion for Remand. In November 2005, the Board then remanded for additional development, including the scheduling of a new VA examination. The subsequent examination and adjudication of the claim led to the Board's April 2007 decision, which was vacated in the Court's May 2008 order. The Board then issued a remand in September 2008 for appropriate action consistent with the matters raised in the May 2008 Joint Motion for Remand, including the scheduling of an additional VA examination. The subsequent examination and adjudication of the claim led to the Board's January 2010 decision, which was vacated in the Court's September 2010 order. 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 As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), are applicable to this matter. The Veteran was notified of the provisions of the VCAA by the RO in correspondence dated in November 2001 and July 2003, and by the Appeals Management Center (AMC) in correspondence dated in December 2005, June 2006 and October 2008. The Veteran contends that the initial 50 percent evaluation assigned his PTSD does not accurately reflect the severity of the disorder. In the September 2008 remand, the Board requested the RO obtain another VA examination with an opinion determining which of the following more closely reflects the impairment caused by PTSD: (a) total occupational and social impairment (100 percent); (b) occupational an social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (70 percent); or, (c) occupational and social impairment with reduced reliability and productivity (50 percent). The Veteran was afforded a VA PTSD examination in June 2009, where his records and claims file were reviewed in conjunction with the interview. He stated in the interview that he had worked all his life, but that he had to give up a lot of his work because of his difficulty concentrating and because of the tremor from his Parkinson's disease. At the time of the examination he was working 12 hours a week. He noted he had been married for 39 years and that, of late, his marriage had become shaky, partially because of his ongoing alcohol abuse. He drank at least four drinks a day. He reported that he liked to fish. On mental status examination the examiner noted the Veteran was casually dressed with no overt evidence of a thought disorder. The Veteran denied delusions, hallucinations, or suicidal/homicidal ideation. He had a rather flat affect and no eye contact. He reported memory difficulties. His speech was within normal limits. He denied panic attacks during the day, but stated he occasionally woke up at night in a panic. He had ongoing sleep problems, with some initial insomnia. As for his PTSD symptoms, he reported having nightmares once or twice a week, and occasionally awaking feeling like he could not catch his breath. He had hyper-reactions to noises, such as cars back firing or rifles firing. He had difficulty dealing with crowds. The examiner noted he showed "a reduced reliability in productivity from flattened affect, difficulty understanding complex commands, impairment of short term memory, difficulty with his mood and with motivation and frequent depression." (emphasis added). He had difficulty maintaining work and social relationships. He worked part-time, had recently had problems in his marriage, and continued to abuse alcohol. It was noted his Parkinson's disease also affected his occupation. The examiner felt the Veteran was incapable of full time employment since he was having significant difficulty managing his part-time employment in part due to memory and concentration problems and irritability from PTSD. The examiner gave him a GAF score of 45, which he noted was "consistent with his significant social and occupational impairment." He also noted the Veteran, under Axis IV of his diagnosis, was "moderate from reduced unemployment, marital difficulties, PTSD symptoms and Parkinson's." Regarding the "memory and concentration problems", VA neurology outpatient treatment records dated in April and May 2009 note that Artane, prescribed for the Veteran's Parkinson's disease was discontinued after he complained that it "clouded his thinking" (April 2009), and interfered with his cognition (May 2009). Because the June 2009 VA psychiatrist opined that the Veteran was incapable of full time employment since he was having significant difficulty managing his part-time employment in part due to memory and concentration problems and irritability from PTSD, it is important to determine whether the memory and concentration problems are due to medications the Veteran takes for the Parkinson's disease, or whether they are due to his alcoholism, or his PTSD. Hence, a review of the medications the Veteran takes for his Parkinson's disease and PTSD should be undertaken to determine the effects of these drugs on memory, concentration and irritability. As the VA examiner found the Veteran's employment was affected by his service connected PTSD, the Veteran has therefore raised the issue of a total disability rating for compensation based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a Veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The U.S. Court of Appeals for Veterans Claims recently held that a request for TDIU 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. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. As such, future adjudication of the Veteran's claim should include the issue of TDIU, in accordance with the holding in Rice. 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 (2010). 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. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). In this case, the Veteran has been granted a 50 percent disability rating for PTSD, which is his only service connected disability. Therefore, he does not meet the minimum schedular percentage criteria for a TDIU. 38 C.F.R. § 4.16(a) (2010). As the Veteran served in the Republic of Vietnam during the Vietnam War, the issue of service connection for Parkinson's disease on a presumptive basis should be addressed. The Board finds that an opinion is needed as to whether as part of his claim for a higher rating, the Veteran is no longer able to be employed solely as a result of his service-connected disability. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who treated him for his PTSD and Parkinson's disease. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Thereafter, the Veteran is to be afforded a VA mental health examination to determine the severity of the impairment of his PTSD to include the effect of his service-connected disability on his employability. The claims file must be made available to and reviewed by the psychiatrist or psychologist in connection with the examination. A notation to the effect that this record review took place should be included in the report of the examiner. As part of the review, the examiner is to indicate whether the Veteran's memory and concentration problems are due to medications he takes for the Parkinson's disease, or whether they are due to his alcoholism, or his PTSD. If necessary, a pharmacologist should be consulted to evaluate the medications the Veteran takes for his Parkinson's disease and PTSD in order to determine the effects of these drugs on memory, concentration and irritability. The extent and nature of any current employment should be recorded. Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected PTSD. The examination report must include a complete rationale for all opinions and conclusions expressed. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed, as well as the issue of service connection for Parkinson's disease, with consideration of all applicable laws and regulations, including a discussion of whether a referral for extraschedular evaluation is warranted under 38 C.F.R. § 3.321 for service-connected PTSD. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).