Citation Nr: 1125068 Decision Date: 07/01/11 Archive Date: 07/14/11 DOCKET NO. 09-19 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma 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 (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1970 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, granted service connection for PTSD with an initial evaluation of 30 percent, and denied entitlement to TDIU. 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 contends that he is entitled to an initial disability rating in excess of 30 percent for his service-connected PTSD and also claims entitlement to TDIU. For the following reasons, the Board finds that remand is warranted for further development to ensure a complete record. A June 2007 statement reflects that the Veteran receives disability benefits from the Social Security Administration (SSA). He did not specify which disabilities the SSA benefits were based on. Where VA has notice that the Veteran is receiving disability benefits from the Social Security Administration (SSA), and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2010); Hayes v. Brown, 9 Vet. App. 67 (1996). Because the Veteran claims entitlement to a higher rating for PTSD and also claims that his service-connected disabilities render him unemployable, the Veteran's SSA records are potentially relevant. Accordingly, on remand, every effort should be made to obtain the Veteran's SSA records and associate them with the claims file. The Board also finds that new VA examinations are warranted with respect to the evaluation of the Veteran's PTSD and the issue of entitlement to TDIU. Under the Veterans Claims Assistance Act of 2000, VA has a duty to assist claimants in developing a claim for VA benefits. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The duty to assist includes conducting a thorough and contemporaneous examination of the veteran when warranted. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a new VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). 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). Here, the April 2008 VA examination assessing the Veteran's PTSD is over three years old. Moreover, the Board finds that the examination report does not describe the Veteran's PTSD and resulting functional impairment in sufficient detail to enable the Board to make a fully informed decision on this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green, 1 Vet. App. at 124)); see also 38 C.F.R. § 4.2 (2010) (providing that if an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). In this regard, although the examiner stated that the Veteran's PTSD caused "significant occupational and social impairment" (emphasis added), he did not specify in what ways the Veteran's PTSD resulted in such impairment apart from stating that the Veteran had "concentration and memory problems that limit[ed] [his] ability to work." On remand, a new VA psychiatric examination should be performed which fully addresses the Veteran's PTSD symptoms and resulting occupational and social impairment. The Board also finds that new VA examinations should be conducted to assess whether the Veteran's other service-connected disabilities preclude him from engaging in substantial gainful employment. See 38 U.S.C.A. § 5103A(d); see also Friscia v. Brown, 7 Vet. App. 294, 297 (1994). While all the Veteran's service-connected disabilities must be addressed, including PTSD, diabetes, tinnitus, hearing loss, and impotence, particular attention should be paid to the extent of occupational impairment caused by the Veteran's residuals of traumatic amputation of the tips of the fourth and fifth fingers of the left hand and residuals of an avulsion injury of the right thumb. The VA examining physician should generally address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities without regard to other factors such as the Veteran's age or nonservice-connected disabilities. See Gary v. Brown, 7 Vet. App. 229 (1994). The examiner should also take into account the Veteran's education and work history in determining whether the Veteran is prevented from working due to his service-connected disabilities. The agency of original jurisdiction (AOJ) should also take this opportunity to obtain the Veteran's outstanding VA treatment records from February 2009 to the present. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should make every effort to obtain and associate with the claims file the Veteran's SSA records, including any decisions made and all medical records associated with such decisions. All efforts to obtain these records should be fully documented and associated with the file. If the AOJ is unable to obtain these records, the Veteran must be notified of this fact and of what efforts that were made to obtain them. A copy of such notification must be associated with the file. 2. The AOJ should obtain the Veteran's outstanding VA treatment records from February 2009 to the present and associate them with the file. 3. The AOJ should schedule the Veteran for a VA psychiatric examination to assess the current level of severity of his service-connected PTSD. The entire claims file and a copy of this REMAND must be provided to the examiner prior to the examination. The examiner must indicate in the examination report that the evidence in the claims file has been reviewed. The examiner should identify the nature, frequency, and severity of the Veteran's PTSD symptoms and any resulting functional impairment. In addition, the examiner should provide a global assessment of functioning (GAF) score with an explanation of the significance of the score assigned as it pertains to the Veteran's PTSD. The examiner should also provide an opinion addressing the effect of the Veteran's PTSD on his occupational and social functioning. The opinion must be supported by a thorough explanation. In this regard, it would be helpful to provide specific examples and refer to specific symptoms. 4. The Veteran should be scheduled for a VA examination to assess whether his service-connected disabilities alone, without regard to other factors such as age and nonservice-connected disabilities, render him unable to engage in substantial gainful employment. The entire claims file and a copy of this REMAND must be provided to the examiner prior to the examination. The examiner must indicate in the examination report that the evidence in the claims file has been reviewed. While all the Veteran's service-connected disabilities must be addressed, including PTSD, diabetes, tinnitus, hearing loss, and impotence, particular attention should be paid to the extent of occupational impairment caused by the Veteran's residuals of traumatic amputation of the tips of the fourth and fifth fingers of the left hand and residuals of an avulsion injury of the right thumb. The examiner must provide a complete rationale for any opinions stated. The AOJ should ensure that an adequate rationale has been provided before returning this case to the Board. 5. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the evaluation of the Veteran's PTSD and entitlement to TDIU on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and 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 matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran 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 claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2010). 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). _________________________________________________ SHEREEN M. MARCUS 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).