Citation Nr: 1123489 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 10-07 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent, for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from May 1970 to January 1972 and from September 1990 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the RO in Nashville, Tennessee. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2010). In its October 2010 Statement of the Case (SOC) and February 2011 Supplemental SOC (SSOC) the AOJ indicated that it had reviewed and considered treatment records from Nashville VA Medical Center (VAMC) dated between January 2009 and February 2011. There are no such records contained in the claims file. Rather, the only available records are those from the Nashville VAMC dated from March 2008 to January 2009. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A remand is therefore required to obtain and associate with the claims file all outstanding VA records. Next, the Board notes that VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2010). Moreover, 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). In the present case, the Veteran underwent a VA examination in January 2009, for psychiatric disorders. The Board finds that the examination was inadequate regarding the effect of the Veteran's disability on his employment. Specifically, the Veteran reported to the VA examiner that he was terminated, or laid off, from his job after getting into an argument with a supervisor and that work had become a struggle because his concentration was poor and that he could not remember how to perform certain tasks. The VA examiner opined that there was no objective evidence to support or rebut the Veteran's contention that his current unemployment was due to his mental disorder because the Veteran reported difficulty with focus and memory in several aspects of his functioning, not just work. The VA examiner's rationale is inadequate because the Veteran is not required to show that difficulty with focus and memory only occurs at work, in order to show that his mental disorder affects his unemployment. Moreover, the speculation nature of the opinion, without any clear rationale, reduces its overall probative value. Regarding the Veteran's claim for TDIU, he underwent a VA examination in February 2011. At that time, the examiner indicated that the Veteran's PTSD disability and its effects on his ability to work needed to be addressed by the VA mental health department. As the VA mental health department has not had the opportunity to examine the Veteran and opine on the matter following the February 2011 VA examination, the claim should be remanded for such examination and opinion. Based on the foregoing, the Veteran should be afforded a psychiatric examination to address both of his claims on appeal. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) ("Once the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one.") Accordingly, the case is REMANDED for the following action: 1. Obtain treatment records related to his psychiatric disability from the Nashville VAMC. A specific request should be made for records from January 2009 to the present. Any negative response should be noted in the file. 2. After the above has been completed, the Veteran should be afforded a VA examination to determine the current degree of severity of his PTSD and its affect on his ability to be employed. The claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should identify all current manifestations of the Veteran's PTSD. To the extent possible, the manifestations of the service-connected PTSD should be distinguished from those of any other psychiatric disorder found to be present. The examiner should also provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected PTSD. In addition, the examiner should provide a global assessment of functioning score with an explanation of the significance of the score assigned. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's service-connected PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The examiner should also provide an opinion concerning the impact of the Veteran's PTSD on his ability to obtain and maintain gainful employment, to include whether the symptoms of the Veteran's PTSD prevent him from working. The examiner should specifically state whether or not the Veteran's PTSD, or chronic symptoms related thereto, in and of itself, precludes employment. A complete rationale for all opinions expressed should be provided. If the examiner cannot provide an opinion without resorting to mere speculation such should be stated along with rationale for such an opinion. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). 4. Upon completion of the above, readjudicate the issue an increased rating for PTSD on a schedular and extraschedular basis on as well as the issue of entitlement to a TDIU, and review of any records that may not have been previously considered. The RO must make a specific determination as to whether the issue should be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of a higher rating and/or a TDIU on an extraschedular basis. 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 provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant 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). _________________________________________________ MICHAEL A. HERMAN 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).