Citation Nr: 1126715 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 10-14 381 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating greater than 50 percent prior to April 2, 2010, and greater than 70 percent thereafter, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified in March 2011 before the undersigned Veterans Law Judge (VLJ), seated at the RO. A transcript from this hearing has been made and is included in the claims file. The Board notes that, in Rice v. Shinseki, the Court held that a TDIU claim is not separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran's TDIU claim was reasonably raised by the record, including during the March 2011 Board hearing. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The claims are REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the Veteran if further action is required on his part. REMAND The Veteran essentially has contended that he is unemployable as a result of his service-connected PTSD. With respect to the Veteran's higher initial rating claim for PTSD, he has testified that he feels the currently assigned rating does not adequately reflect his level of disability. He testified that he was currently employed as a teacher but "a lot of times," he could not remember what he was supposed to be teaching. He had homicidal and suicidal thoughts; and he preferred to be socially isolated. He was being treated though the VAMC Jefferson Barracks. Subsequent to the March 2011 Board hearing, the Veteran submitted two VAMC treatment reports dated in March and April 2011 which noted that he feared he would be losing his job within the next three weeks. The Board notes that the issue of TDIU was reasonably raised by the record in the Veteran's testimony during the March 2011 Board hearing and the subsequent VAMC treatment records noting a report the Veteran feared he would be losing his job within the next three weeks. TDIU may be assigned when service connection is in effect for one disability rated as 60 percent or more, or two or more service-connected disabilities with at least one rated as 40 percent or more such that there is a combined rating of at least 70 percent. The Board notes that the Veteran currently meets the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2010). There is no competent medical evidence, however, suggesting that the Veteran is unemployable solely as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2010). June 2010 VAMC treatment records noted a worsening of his symptoms as a result of relocating to a new residence, and financial and family problems. The clinician noted in his recommendations and plans to assist the Veteran in his application for increased PTSD benefits. When there is evidence of worsening of a disability a more current VA examination is required. Snuffer v Gober, 10 Vet. App. 400 (1997) The Veteran has been seeking treatment from the VA Medical Center (VAMC) in St.Louis, Missouri. Records dated from June 2010 to the present must be obtained. VA has a duty to assist the Veteran by obtaining all records known to exist. Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159 (2010). Thus, remand is required. The Board finds that a VA examination is necessary to address the extent to which the Veteran's PTSD affects the Veteran's ability to obtain and maintain substantially gainful employment. The RO should also determine whether the Veteran is currently working. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran to determine if the Veteran is currently employed. A determination of his current employment status must be made and entered into the claims file. 2. The RO/AMC should obtain all treatment records from the VAMC in St. Louis dated from June 2010 to the present. All attempts to obtain these records should be documented in the claims file. 3. The RO/AMC should schedule the Veteran for a VA examination to determine the current nature and severity of his PTSD. The claims folder, including a copy of this Remand, must be made available to the examiner and reviewed in conjunction with the examination. All necessary tests should be conducted and the examiner is requested to review all pertinent records associated with the claims file. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. It is imperative that the examiner determine the extent of the Veteran's PTSD symptoms as well as the effect on his social and occupational functioning and provide a Global Assessment of Functioning (GAF) score due to PTSD. If the Veteran is not employed or has only marginal employment, then, following this examination, the examiner must determine the effects of his PTSD on his ability to obtain and maintain employment. The examiner is asked to obtain a complete occupational history from the Veteran, if possible, and to provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's service- connected disabilities, without consideration of his non-service-connected disabilities and without regard to his age, render him unable to secure or follow a substantially gainful occupation. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 4. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. 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). In the event that the Veteran does not report for the aforementioned examination, obtain documentation showing that notice scheduling the examination was sent to the last known address of record, and indicate whether any notice that was sent was returned as undeliverable. 5. Following any other indicated development, the RO/AMC should readjudicate the claims and determine if they may be granted. If any benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). The 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). ____________________________________________ ROBERT C. SCHARNBERGER 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).