Citation Nr: 1128567 Decision Date: 08/02/11 Archive Date: 08/10/11 DOCKET NO. 09-15 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), evaluated as 10 percent disabling, prior to March 13, 2009. 2. Entitlement to an initial increased rating for PTSD, evaluated as 50 percent disabling, since March 13, 2009. 3. Entitlement to a total rating based upon individual unemployability based upon service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision. This rating decision of the Appeals Management Center, in Washington, DC, effectuated the Board's October 2007 decision, in part, which granted service connection for PTSD. PTSD was awarded a 10 percent rating, effective December 2002. The Veteran appealed the 10 percent rating and the current appeal ensued. By rating decision of the April 2009 Portland, Oregon, Regional Office (RO), the RO increased the 10 percent rating to 50 percent, effective March 13, 2009. The Veteran continued to disagree with the rating provided. This case is under the jurisdiction of the Portland, Oregon RO. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. A transcript of that hearing is of record and associated with the claims folder. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. During the Veteran's March 2011 Travel Board hearing, the Veteran indicated that he was in receipt of Social Security disability benefits. He stated that the award was based on his mental disorder (PTSD) and physical disabilities, to include the service connected residuals of a fractured ankle. The United States Court of Appeals for Veterans Claims (Court) has held that VA has a duty to acquire both the Social Security Administration (SSA) decision and the supporting medical records pertinent to a claim. See Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). However, in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the Federal Circuit held that VA's duty to obtain SSA records was not absolute, and that the duty only extends when the records are believed to be relevant. Here, because the Veteran testified that he is in receipt of Social Security disability benefits due to his psychiatric disability and because he maintains he is unable to work as a result of his service-connected PTSD and residuals of an ankle fracture, the potential relevancy of the SSA decision and the records it considered cannot be ignored. These records are necessary for review before a decision may be made regarding his claim. Additionally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran testified at his March 2011 Travel Board hearing that he had been unable to work as a result of his service-connected PTSD and ankle disabilities. Based on the Veteran's assertions, the Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claims pursuant to Rice. Having determined that the issue of TDIU is properly raised by the record, the Board finds that further development is necessary prior to adjudicating the claim. In this regard, the law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). Given the evidence of record demonstrating that the Veteran is currently unemployed and may be unemployable, a VA opinion in connection with the examination should be provided to determine whether his service-connected disabilities, alone or in aggregate, render him unable to secure or follow a substantially gainful occupation. Therefore, a VA examination is also required to determine, to the extent possible, whether his service-connected disabilities precludes substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the Social Security Administration decision that awarded the Veteran disability benefits. The records considered by the SSA in making its decision should also be secured. Any negative response should be included with the claims file. 2. The Veteran should undergo a VA examination to determine the effect of his service connected disabilities on his ability to work. The examiner should evaluate the effects of the Veteran's service-connected right ankle disability on his ability to obtain substantially gainful employment. The examiner should be asked to opine whether the Veteran's service connected PTSD, residuals of a right ankle, and tinnitus, alone or in the aggregate, prevent him from obtaining substantially gainful employment. The examiner should be provided with the claims file for review in conjunction with the examination. A rationale should be provided for any opinion rendered. If no opinion can be provided without resorting to speculation, the examiner should so state with supporting rationale. 3. After completion of the above, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. Consideration must be given to his claim for a total disability evaluation based on individual unemployability. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be afforded the opportunity to respond. Thereafter, the case should be returned to the 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. 2009). _________________________________________________ MICHAEL A. HERMAN 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).