Citation Nr: 1127489 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 08-14 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from January 1987 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which continued the 50 percent evaluation for the Veteran's PTSD disability. In February 2010, the Veteran testified via teleconference, audio capability only, before the undersigned. Upon the request of the Veteran's representative, the record was held open for 60 days to allow for the submission of additional evidence. No evidence was received into the record. This case was remanded by the Board in May 2010 for further development. The Board is satisfied as to substantial compliance with its May 2010 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included obtaining the complete record of all of the Veteran's psychiatric treatment records from the East Orange, New Jersey, Denver, Colorado, and Little Rock, Arkansas, VA medical facilities; asking the Veteran to provide any private medical records pertaining to treatment or evaluation of his PTSD disability; contacting the Social Security Administration (SSA) to obtain a copy of the benefit determination letter and all underlying medical documentation; and affording the Veteran an appropriate PTSD examination. As such, the case is now ready for disposition. The issues of entitlement to a TDIU due to a service-connected disability and entitlement to an initial rating in excess of 50 percent for PTSD on an extraschedular basis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's PTSD is manifested by marital discord, sleep impairment, hypervigilance, irritability, increased startle response, anxiety, depression, and difficulty in social and occupational functioning. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his service-connected PTSD warrants an increased rating. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the rating period on appeal, the Veteran's PTSD has been rated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). That code section evaluates PTSD under the general rating formula for mental disorders. Such general rating formula provides a 50 percent rating where the evidence demonstrates occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. In order to be entitled to the next-higher 70 percent evaluation, the evidence must show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment Functioning (GAF) scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., avoidance of friends, neglect of family, unable to work). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2010). After reviewing the evidence of record, the Board finds no support for an evaluation in excess of 50 percent for the Veteran's service-connected PTSD. The evidence does not show that the symptoms of the Veteran's PTSD more closely approximate the criteria for a 70 percent rating or a 100 percent rating. The Veteran initially filed a claim for entitlement to service connection for PTSD in July 2002. In a February 2004 decision, the RO granted entitlement to service connection for PTSD and awarded a 10-percent evaluation effective July 30, 2002. However, the Veteran disagreed with this evaluation, and the RO increased his evaluation to 50 percent effective July 30, 2002, in a December 2004 decision. The Veteran continues to disagree with his currently-assigned 50 percent evaluation. The Veteran was initially afforded a VA PTSD examination in September 2002, at which time he was diagnosed with mild major depressive disorder. Subjectively, the Veteran complained of lack of motivation, disinterest in cleanliness and personal hygiene, lack of mental focus, bouts of rage, and feelings of paranoia. Upon objective examination, his appearance was appropriate. Although his attitude initially verged on being hostile, his underlying cooperativeness gradually emerged. His mood was depressed and his affect was restricted. His speech was normal and his perceptual processes were unimpaired. He described fleeting suicidal ideation, although no suicidal planning. He denied homicidal ideation. He was oriented as to person, place, and time, and his short-term memory, long-term memory, and concentration were intact. His concept formation was approached abstractly and proverbs were interpreted accurately. His judgment was present, and his impulse control was mildly compromised. His insight was intact. The examiner assigned him a GAF score of 60, indicative of only moderate symptoms. The examiner explained that the Veteran presented with a mixture of symptoms of anxiety and depression, with the latter predominating. He had a deficit in his capacity to feel pleasure, enjoyment, or effectiveness. He had lost interest in sex and his emotional capacity had become constricted. He exhibited less motivation, less purposefulness, and a disinterest in personal hygiene. The Veteran was afforded his next VA PTSD examination in February 2004, at which time he was diagnosed with prolonged PTSD. Subjectively, the Veteran described very poor social relationships and a diminished social life. He claimed to be withdrawn and only able to tolerate social situations for brief periods. He described a long history of assaultive behavior since discharge. He claimed that he had a "good deal" of suicidal ideation, but no suicidal plans or intent. Upon objective examination, eye contact was poor. His mood was depressed and anxious. There were no delusions, hallucinations, or homicidal ideation. Although he often had suicidal ideation, he had no suicidal plan or intent. His personal hygiene was fair, and he was oriented as to person, time, and place. There was no memory impairment noted. He described obsessive and ritualistic behavior, such as only boarding an airplane if he can touch its outside and often checking ceilings for microphones and cameras. However, there was no suggestion that this behavior interfered with routine activities. He described experiencing "panic attacks" while driving and having the sensation that oncoming traffic will hit him, although these were not diagnosed as panic attacks by medical professionals. He reported avoidance of crowds and difficulty sleeping due to nightmares. The examiner found that he also suffered from exaggerated startle response, increased reactivity to events, difficulty sleeping, hypervigilance, outbursts of anger, and recurrent and distressful recollections of traumatic events. The examiner noted that although the Veteran was working, he was experiencing severe symptoms and disruption of social function. He assigned the Veteran a GAF of 50, indicative of serious symptoms. The Veteran was afforded his next VA PTSD examination in March 2006, at which time he was diagnosed with PTSD. Subjectively, he complained of nightmares, hypervigilance, heightened startle reflex, sleep difficulties, depression with diminished interest, poor energy, poor concentration, and sporadic suicidal ideations. The Veteran was currently unemployed, having lost his job at a computer firm due to layoffs. Upon objective examination, the Veteran was cooperative and casually dressed. His mood was depressed and his affect was blunted. His speech was normal and there were no perceptional problems. His thought processes and thought content were normal. There was no current suicidal or homicidal ideation, and he was oriented as to person, place, and time. His insight, judgment, and impulse control were fair. The examiner concluded that the Veteran suffered from only moderately-severe PTSD symptoms, but nonetheless assigned him a GAF score of 40, indicative of some impairment in reality testing or communication or major impairment in several areas. However, the examiner noted that the Veteran's psychiatric problems did not prevent him from obtaining employment. The Veteran's most recent VA PTSD examination was conducted in September 2010, at which time he was diagnosed with chronic PTSD. Subjectively, the Veteran complained of marital problems, difficulty sleeping, anxiety, irritability, and depression. In addition, he informed the examiner that he had not been honest with his VA mental health physician over the past one to two years, and that he was having problems with sleep, anxiety, irritability, and depression, even though he reported to them that he was not. Upon objective examination, the Veteran was casually and neatly dressed and groomed. He was cooperative and pleasant, and displayed mild anxiety and irritability, smiling frequently but appearing tense and ill at ease. His mood was mildly anxious and irritable, and his affect was appropriate to his mood. He made good eye contact. His speech was logical and coherent, and within normal limits with respect to rate and rhythm. He was alert and oriented as to all spheres, and his thought processes were logical and tight, with no loosening of associations. He reported no hallucinations, and no delusional material was found. He also denied suicidal or homicidal ideation at the present time, although he said that he had suicidal ideation in the past. He reported no side effects to his medications, and felt that they were somewhat effective in controlling his symptoms and keeping his anger from getting out of bounds. His insight and judgment were adequate. The examiner noted that the Veteran did appear to have some serious problems with irritability and serious conflicts with his spouse. The Veteran was currently working as a part-time substitute teacher in a public school district and reported some difficulty at work related to his impatience and irritability. He indicated that he was suspended from a classroom because a student made a complaint about him. The examiner found that he could handle the activities of daily living and assigned him a GAF score of 55, indicative of merely moderate symptoms. In addition, VA treatment records from 2008 through 2010 assigned him consistent GAF scores of 41, indicative of serious symptoms. However, these treatment notes indicated that he was well groomed, appropriately dressed, with a good mood and bright, euthymic, and congruent affect. His thought process was logical and goal oriented, and he denied any current suicidal or homicidal ideation. The mental health physicians noted that his PTSD symptoms were well controlled on his current medication regimen, and that the Veteran slept well, had low anxiety, a good mood, and no problems with energy or concentration. The Veteran also reported practicing tae kwon do with his spouse and son to relieve stress. The Veteran indicated that he was doing better than he had in the past 10 years. By March 2010, his VA mental health physicians had increased his GAF score to 45. Furthermore, the Veteran applied for Social Security Administration (SSA) disability benefits in December 2009. During the development of that claim, he underwent a Mental Residual Functional Capacity Assessment. The physician who conducted this assessment found that the Veteran was only moderately limited in his ability to maintain attention and concentration for extended periods as well as his ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. However, he was found to not be significantly limited in all other areas. The physician concluded that the Veteran was able to perform work where interpersonal contact is routine but superficial, e.g. as a grocery checker. He was suited for jobs where the complexity of tasks was learned by experience, with several variables, and used judgment within limits. Little supervision would be needed for routine tasks, but detailed supervision would be needed for non-routine tasks. The Veteran was determined to be able to perform semi-skilled work. Based on this assessment, the SSA determined in March 2010 that the Veteran was not disabled for SSA disability benefit purposes. The preponderance of the evidence shows that the Veteran's PTSD more closely approximates the criteria for a 50 percent rating than for the next higher rating of 70 percent. Overall, the Veteran's GAF scores ranging from 50 to 60 are consistent with moderate social and employment difficulties. The Board concedes that the Veteran was assigned a GAF score of 40 at his March 2006 VA PTSD examination, indicative of some impairment in reality testing or communication or major impairment in several areas. However, the relatively moderate PTSD symptomatology noted in this examination report was not consistent with this low GAF score, and the physician even opined that the Veteran's psychiatric problems did not prevent him from obtaining employment. The Board also concedes that VA treatment records dated from 2008 to 2010 assigned GAF scores of 41 and 45. As discussed above, scores of 41 to 50 are given for serious symptoms, such as suicidal ideation, or serious impairment in social, occupational or school functioning. However, these treatment records indicated that his PTSD symptoms were well controlled on his current medication regimen, and that the Veteran slept well, had low anxiety, a good mood, and no problems with energy or concentration. In addition, the Veteran no longer reported suicidal ideation at this time. As such, the Board finds that the GAF scores assigned during this period were not consistent with the actual symptomatology noted by VA physicians. There was no evidence of obsessional rituals which interfere with routine activities; illogical, obscure or irrelevant speech; near continuous panic or depression affecting his ability to function independently, appropriately or effectively; spatial disorientation; or neglect of personal appearance and hygiene. Although the Veteran claimed to have suicidal ideations during the appeals period, there was never any suicidal plan or intent. This suicidal ideation was the only symptom listed in the criteria for a 70 percent evaluation that was consistently shown during the appeal period. In addition, the record shows that the Veteran was terminated from his position as a security manager at a computer firm in February 2006 due to layoffs. Furthermore, he has worked as a substitute teacher since the termination of his prior employment, although he testified that he makes less than $5,000 annually. There is no indication that the Veteran has actively sought other employment. As previously noted, even though during the appeals period the Veteran reportedly had anger outbursts, marital discord, and suicide thoughts, the objective findings of record overall fail to show that his symptoms caused increased occupational and social impairment. In fact, clinical entries consistently show that the Veteran had logical and clear thought processes. There is no evidence of deficiencies in judgment or thinking. Additionally, there is no evidence of obscure, illogical or irrelevant speech. His speech was consistently found to be appropriate in rate, rhythm and volume. Although he reported a disinterest in maintaining good hygiene, there is no evidence of disorientation or neglect of personal appearance or hygiene. Although the Veteran reported becoming anxious when driving, there was no evidence of panic or depression affecting his ability to function independently, appropriately, and effectively. The Veteran maintained a marital relationship for approximately 19 years and has raised three adopted children. The objective evidence of record overall fails to show that the Veteran's occupational and social impairment had increased in severity so as to warrant an increased rating. In some instances, the record demonstrates only social impairment and very mild occupational impairment due to symptoms associated with PTSD. Ratings for disabilities for mental disorder cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The evidence of record shows only moderate psychiatric symptoms, despite the occasional assignment of GAF scores ranging from 40 to 45. For these reasons, the Veteran's PTSD does not approximate the rating criteria for higher than the 50-percent rating assigned. Therefore his claim must be denied. The Board is aware that the symptoms listed under the 70 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 70 percent evaluation. Nevertheless, the Board finds that the record does not show the Veteran manifested symptoms that equal or more nearly approximate the criteria for a 70 percent evaluation at any time during the pendency of this appeal. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, evidence of severe or total occupational impairment due to PTSD is not present. The Board acknowledges the personal statements submitted and testimony given by the Veteran, which describe his symptomatology associated with his PTSD. The Board finds, however, that the currently-assigned 50 percent evaluation for PTSD appropriately reflects the Veteran's symptoms throughout the entire rating period on appeal, and there is no basis for a higher rating. The objective evidence of record does not support the reportedly-increased symptoms attributable to the Veteran's PTSD. Rather, the objective evidence demonstrates that the Veteran's impairment is no more than moderate, thereby rendering his statements and testimony to be of little or no probative value. As the competent and credible medical evidence preponderates against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the Veteran's increased rating claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, the RO associated the Veteran's service treatment records, VA treatment records, and SSA records with the claims file, and he was afforded VA examinations in September 2002, February 2004, March 2006, and September 2010. 38 C.F.R. § 3.159(c) (4). To that end, 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). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's PTSD symptomatology since the September 2010 VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. Additionally, in February 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the February 2010 hearing, the undersigned Veterans Law Judge identified the issue on appeal. Also, information was solicited regarding the current severity of the psychiatric disability and whether there were any outstanding medical records available demonstrating additional symptomatology. Upon the request of the Veteran's representative, the record was held open for 60 days to allow for the submission of additional evidence. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issue material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim for an increased rating for PTSD. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the element(s) necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER Entitlement to an evaluation in excess of 50 percent for PTSD is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds the evidence of record has raised the issue of entitlement to a TDIU. Specifically, the Veteran has indicated that he was terminated from his position as a security manager at a computer firm in February 2006, and has earned less than $5,000 annually as a substitute teacher since then. He has attributed the loss of his security manager job to his PTSD symptomatology. With regard to a TDIU, the Board notes that the RO has not developed or adjudicated this issue. However, the Court recently held that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for an initial rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if during the course of a rating appeal, the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the initial rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. Because entitlement to a TDIU is part of the Veteran's increased rating claim, the proper remedy here is for the Board to remand, rather than refer, the TDIU issue to the RO for proper development and adjudication. In this regard, VA's Office of General Counsel has stated that when the issue of entitlement to a TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. If the Board determines that further action by the RO is necessary with respect to TDIU, the Board should remand rather than refer the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). Therefore, first, the RO should send a VCAA notice letter to the Veteran for his TDIU claim. This letter should notify the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Second, the RO should provide a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to the Veteran. See M21-1MR, IV.ii.2.F.25.i. 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 medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In addition, the Board has not yet evaluated the Veteran's claim for entitlement to an initial rating in excess of 50 percent for PTSD on an extraschedular basis. As the development being undertaken with respect to the issue of entitlement to a TDIU may be relevant to the Board's extraschedular evaluation, the Veteran's claim for consideration of an extraschedular rating for PTSD is held in abeyance pending further development and adjudication of the Veteran's TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Send a VCAA notice letter notifying the Veteran of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. 3.159(b). In addition, send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete and return. See M21-1MR, IV.ii.2.F.25.i. 2. Also, obtain copies of the Veteran's treatment records, if any, from the Central Arkansas Veterans Healthcare System in Little Rock, Arkansas, for the period dating from May 2010 to the present. Any negative reply should be annotated in the claims file. 3. After completion of the above, if additional treatment records have been associated with the claims file, the Veteran should be scheduled for a VA examination to evaluate whether he is able to secure and follow a substantially gainful occupation as a result of his service-connected disability. The claims folder must be made available to and be thoroughly reviewed by the examiner in connection with the examination. The examiner must indicate in the examination report that the claims file was reviewed. The examination report should include a complete discussion of the Veteran's subjective complaints, findings on mental status examination, and a multi-axial diagnosis with Global Assessment of Functioning (GAF) score. Following a review of the Veteran's medical records and history, the examiner should discuss all relevant medical evidence and findings regarding the service-connected disability. The examiner should indicate whether the Veteran is unemployable due to his service-connected disability. In particular, the examiner should indicate the effect the Veteran's PTSD has on his ability to obtain and maintain gainful employment. The examiner should clearly state the rationale for any opinion expressed. If any requested opinion cannot be given, the examiner should state the reason why. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 5. Upon completion of the above, readjudicate all issues in appellate status. This should include a determination of whether the claim for an increased rating should be referred to the Director, Compensation and Pension Service, for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b) and § 3.321. 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 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs