Citation Nr: 1127848 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 08-15 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was previously before the Board in January 2010, when the evaluation of the Veteran's PTSD was increased from 50 percent to 70 percent. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2010 Order, the Court remanded that portion of the January 2010 decision that denied an evaluation in excess of 70 percent back to the Board for compliance with instructions contained in an August 2010 Joint Motion for Partial Remand. The appeal has now been returned to the Board for action consistent with the Order and Joint Motion. 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 August 2010 Joint Motion notes that a September 2007 VA treatment note from Dr. K. states that the Veteran "is unable to work in any gainful capacity due to PTSD symptoms..........." The Joint Motion further notes that the Board referred the matter of entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) back to the RO on the basis of this statement. The Board then denied a 100 percent evaluation on the basis that the Veteran had not displayed the symptoms "such as" those listed under the schedular criteria for a 100 percent evaluation. The Joint Motion states that the Board erred when it failed to properly apply Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002), and that this case holds that the presence of the symptoms listed under the rating criteria is not required, but that rather it is the effect of those symptoms on the Veteran's social and work situation that are the basis for an evaluation. Therefore, in view of the September 2007 statement that the Veteran was unable to work in any gainful capacity due to PTSD symptoms, the Joint Motion found that simply noting the absence of the symptoms listed under the rating criteria was not a sufficient reason or basis to explain why a 100 percent rating was not warranted. The Joint Motion further notes that a 100 percent evaluation is warranted when there is both total occupational and social impairment. See 38 C.F.R. § 4.130, Code 9411. The Board notes that at this juncture, while the record contains an opinion stating that the Veteran has total occupational impairment, there is no such opinion regarding his social impairment. Furthermore, his last VA examination was in October 2008. Therefore, the Board finds that the Veteran should be scheduled for a VA examination in order to assess his current level of impairment and to obtain an opinion as to whether the Veteran has both total occupational and total social impairment. Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action to obtain all private and VA treatment records pertaining to the Veteran's PTSD from October 2008 to the present and associate them with the claims folder. 2. After the receipt of the records requested above or it is verified that they are unobtainable, schedule the Veteran for a VA psychiatric or psychological examination. All indicated tests and studies should be conducted. The claims folder must be provided to the examiner for use in the study of this case. After a review of the record and completion of the examination, the examiner should attempt to express the following opinion: Does the Veteran's PTSD result in both total occupational impairment and total social impairment? If so, the symptoms that produce this impairment should be identified. If not, the symptoms that would be expected to cause total occupational and total social impairment but are not found present in the Veteran should also be identified. The reasons and bases for all opinions should be noted. If the examiner finds that they are unable to provide the requested opinion without resort to speculation, the reasons and bases for this conclusion should be noted, and evidence required to provide the opinion should be identified. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action until otherwise notified. 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). _________________________________________________ MICHAEL D. LYON 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).