Citation Nr: 1124381 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 09-26 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In April 2011, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. 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 The Veteran contends that an initial rating in excess of 30 percent is warranted for his service-connected PTSD. In April 2011, he and his representative stated that an additional VA examination is necessary as his condition had worsened since the previous examination in January 2009. That communication also indicated that the Veteran was unemployable due to his psychiatric condition. The Veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). The Veteran's most recent VA psychiatric examination was conducted in January 2009, and the evidence indicates that his disability has worsened in severity. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (the Veteran is competent to provide an opinion that his disability has worsened). The Board further notes that no clinical evidence is of record subsequent to the January 2009 VA examination from which to assess the current severity of the Veteran's PTSD. Therefore, the Veteran should be provided a VA examination to determine the current severity of his PTSD, including the impact of the disorder on his employment. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United State Court of Appeals for Veterans Claims (Court) held 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. Thus, on remand, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU and as noted previously, the psychiatric examination should determine if he is currently unemployable due to his service-connected conditions. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide appropriate notice concerning the Veteran's claim for TDIU. 2. The RO/AMC should obtain the Veteran's most recent VA treatment records not already associated with the claims file. Once obtained, these records should be associated with he claims file. 3. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity of his psychiatric disability. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner must also comment on the impact of his psychiatric disability on his ability to obtain and retain employment. Then, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, and in particular, his PTSD, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 4. Thereafter, the RO should readjudicate the Veteran's claim for a higher rating for his PTSD, to include consideration of his TDIU claim. If such action does not grant the benefits claimed, the RO should provide the Veteran a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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). _________________________________________________ ERIC S. LEBOFF 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).