Citation Nr: 1104272 Decision Date: 02/02/11 Archive Date: 02/14/11 DOCKET NO. 06-38 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Kathy A. Leiberman, Attorney at Law ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which granted service connection for PTSD and assigned an initial rating of 50 percent. This case was previously before the Board in May 2009, at which point the Board issued a decision denying an initial disability rating in excess of 50 percent for PTSD. The Veteran appealed from that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2010 Order, pursuant to a Joint Motion for Remand, the Court vacated and remanded the decision to the Board. Shortly before the last adjudication of this issue by the Board, the Court held that a claim for a TDIU will be inferred where evidence of unemployability is submitted during the course of an appeal from an assigned disability rating. The Court further held that, in such cases, the request for a TDIU is not a separate "claim" for benefits but, rather, is an attempt to obtain an appropriate initial or increased disability rating. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the RO denied entitlement to a TDIU in October 2007, and it does not appear that the Veteran expressly appealed from the disagreement. Nevertheless, the Veteran and his representative have asserted numerous times during the course of the appeal that he is unable to work as a result of his service-connected PTSD. See, e.g., November 2010 letter from representative. As such, the issue of a TDIU is also currently before the Board, as part of the Veteran's attempt to obtain an appropriate initial disability rating for his PTSD. See Rice, 22 Vet. App. at 453-54. The Veteran's private physician testified at a hearing at the RO in February 2007, and a transcript of that hearing has been associated with the claims file. The DRO specifically noted that the Veteran was present and was in the hallway, but he did not to testify. The Veteran has not requested a hearing before the Board. As discussed below, and pursuant to the Court's Order, the Board finds that the case must be remanded to the RO for further development as to both issues on appeal. Accordingly, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As noted by the Court, further development is necessary for a fair adjudication of the Veteran's claims. 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 claims so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). First, as noted in the Joint Motion for Remand, there is an indication that pertinent VA treatment records remain outstanding. Specifically, the Veteran reported receiving VA mental health treatment at the time of his November 2005 service connection claim. Further, VA treatment records dated in October 2006 reflect that he requested follow-up psychiatric treatment at that time. However, no such records have been requested or obtained. Additionally, the Board notes that the Veteran was receiving private mental health treatment from Dr. J as of June 2007, and no further records have been obtained from that provider. As such, upon remand, the Veteran should be requested to complete any necessary authorization or release, and any outstanding VA and private treatment records, specifically to include all mental health treatment records dated since 2005, should be obtained and associated with the claims file. If any records are not obtained after making reasonable attempts, the Veteran should be notified and allowed an opportunity to provide such records, in accordance with 38 C.F.R. § 3.159(c)&(e) (2010). As noted above, the Veteran's claim for a TDIU is before the Board pursuant to Rice, 22 Vet. App. at 453-54. Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service- connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, if these threshold criteria are not met, but the evidence reflects that a veteran is unemployable by reason of service-connected disabilities, the case must be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. 38 C.F.R. § 4.16(b) (2010). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010); see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). Substantially gainful employment does not include "marginal employment," which is generally deemed to exist when the earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(b); see also Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991) (indicating that work at odd jobs or while employed at less than half of the usual remuneration shall not be considered substantially gainful employment). However, marginal employment may be held to exist on a "facts found basis" even when earned annual income exceeds the poverty threshold, including but not limited to "employment in a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(b). Further, a Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, the Veteran was afforded VA examinations pertaining to his PTSD in March 2006 and July 2007, as well as a VA Social and Industrial Field Survey in July 2007. The Board notes that there is a wide variation in the global assessment of functioning (GAF) scores that were assigned by the Veteran's private provider (including during his February 2007 testimony at the RO), and by the previous VA examiners. Further, there is an indication that the Veteran may have worked in his family business during the appeal, although it is unclear whether he was actually working or received any remuneration. As such, the Board finds that the medical evidence currently of record is insufficient to adequately evaluate the severity of the Veteran's PTSD. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (VA must provide a contemporaneous medical examination where the record does not adequately reveal the current state of the claimant's disability, particularly if there is no additional medical evidence that adequately addresses the level of impairment the disability since the previous examination). As such, upon remand, the Veteran should be scheduled for a new VA examination, as well as a VA Social and Industrial Field Survey, to determine the current severity of his disability, to include his daily functioning and employment history. The Board notes that the Court also found that the case must be remanded to the Board because there were untranslated Spanish documents in the claims file. All Spanish documents currently in the claims file have now been translated. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify and complete the necessary authorization and release for any outstanding private mental health treatment records pertaining to the period on appeal, specifically to include from Dr. J. Thereafter, request copies of any outstanding records from Dr. J dated from June 2007 forward, as well as any outstanding VA treatment records, specifically to include any VA mental health records dated from 2005 forward. All requests and all responses, including negative responses, must be documented in the claims file. All records received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records, in accordance with 38 C.F.R. § 3.159(c)&(e). 2. Afford the Veteran a VA Social and Industrial Field Survey to assess his employment history and day-to-day functioning. The evaluator should specifically obtain information as to the Veteran's involvement in his family business during the appeal, or since November 2005. A written copy of the report should be inserted into the claims folder. 3. After completing the above-described development, provide the Veteran with a VA examination to determine the current severity of his PTSD, to include the effects on his employability. The entire claims file and a copy of this remand, as well as the July 2010 Joint Motion for Remand, must be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to record and describe the severity of all current symptoms of the Veteran's PTSD, as well as a current global assessment of functioning (GAF) score. Additionally, the examiner is requested to comment on the wide variation between the GAF's assigned by the previous March 2006 and July 2007 VA examiners and by the Veteran's private physician. With respect to a TDIU, the VA examiner should indicate whether the Veteran has been employed in any capacity (part-time or otherwise) during the course of the appeal, or since November 2005. The examiner should specifically describe any involvement in the Veteran's family business. In addition, the examiner should offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more) that the Veteran has been unable to secure or follow a substantially gainful occupation solely as a result any service-connected PTSD (and/or any other service-connected disabilities) at any period during this appeal, or since November 2005. The examiner should be informed of the definition of marginal employment, as summarized above, and that "substantially gainful occupation" does not include marginal employment. The examiner should consider the Veteran's level of education, special training, and previous work experience, but not the effects of his age or any nonservice-connected disabilities. Additionally, the examiner should consider the other opinions of record concerning the Veteran's level of functioning, including the July 2007 VA Social and Industrial Field Survey report, the two previous VA examination reports, and the private provider's February 2007 testimony and treatment records. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of both the lay and medical evidence of record. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 4. After completing any further development as may be indicated by any response received upon remand, readjudicate the Veteran's claim for an initial disability rating in excess of 50 percent for PTSD, specifically to include the inferred claim for a TDIU. Such adjudication should reflect consideration of all lay and medical evidence of record, as well as the rules pertaining to marginal employment, as summarized above. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, which addresses all evidence associated with the claims file since the last statement of the case, as well as all relevant law, including Rice, 22 Vet. App. at 453-54. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this REMAND is to obtain information and/or evidence which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655 (2010), failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). (CONTINUED ON NEXT PAGE) 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. TRUEBA 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).