Citation Nr: 1120391 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 07-08 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney At Law WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. These matters come before the Board of Veterans' Appeals (BVA or Board) from rating decisions dated in June 2006 and June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge in January 2009. A copy of the transcript is of record. When this matter was initially before the Board in May 2010, the Board granted an increased rating for the Veteran's service-connected PTSD and remanded the issue of TDIU for procedural development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2010 Joint Motion to Remand, the Court remanded the Board's decision regarding the increased rating for PTSD. Development as to the TDIU issue has now been completed, and the Board may proceed with adjudication at this time. The issue of entitlement to a rating in excess of 70 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected PTSD is of such severity as to preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU are met since January 25, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA 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 & Supp. 2010); 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). 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. With respect to the TDIU claim, the Board is granting in full the TDIU benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. TDIU Total disability ratings for compensation purposes may be assigned when the schedular rating for service-connected disabilities is less than 100 percent, when it is found that those disabilities are sufficient to produce unemployability without regard to advancing age. If unemployability is the result of a single service-connected disability, that disability must be rated at 60 percent or more. If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Pursuant to the Board's May 2010 decision, and the May 2010 Appeals Management Center (AMC) rating decision effectuating the Board's determination, the Veteran is in receipt of a schedular rating of 70 percent for his PTSD, effective January 25, 2006. As the Veteran is now rated at 70 percent for his PTSD, he now meets the schedular criteria of 38 C.F.R. § 4.16(a) as early as January 25, 2006. Thus, the issue is whether his service-connected PTSD has precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorder, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Various treatment records confirm that the Veteran became too disabled to work around 2001. A January 2003 determination by the Social Security Administration (SSA) determined that the Veteran had not engaged in substantial gainful activity since April 2001, and that the medical evidence established that he had severe impairments including degenerative disc disease and carpel tunnel syndrome. The Board has considered a December 2010 private opinion which addresses the Veteran's unemployability. The Vocational Rehabilitation Consultant reviewed the Veteran's entire claims file and conducted a telephone interview with the Veteran. She noted that the Veteran had not worked since 2001 and was receiving SSA disability benefits for multiple conditions. She indicated that a review of the Veteran's claims file demonstrated that he had a long history of symptoms related to his service-connected PTSD. She stated that despite more intensive treatment since 2002, the record showed that his symptoms had progressed and that the chronicity of symptoms indicated a poor prognosis. The December 2010 private examiner stated that by 2005 the medical records reveal severe psychological problems that would significantly impair occupational functioning. She indicated that based on statements from examining and treating providers, the Veteran would not be able to work a full day without distraction from intrusive thoughts, would have difficulty getting along with supervisors and co-workers, would be fatigued and irritable, and would not be effective or dependable worker due to difficulties with memory, concentration, and anxiety attacks. The examiner additionally noted that the Veteran also suffered from hypertension, diabetes and a back condition. The private examiner indicated that these problems, in combination with his service-connected PTSD, have rendered the Veteran unable to maintain any type of gainful employment since 2001, when he was awarded SSA disability insurance benefits. However, of notably import, the opined that when assessing the effects of PTSD upon employment, absent his other non-service connected conditions, the PTSD symptoms alone have rendered him unable to secure and maintain substantially gainful employment since at least 2006. The December 2010 examiner concluded her report stating that based on the continuity of the medical record, ongoing severity of symptoms, and the Veteran's description of his limitations, it is at least as likely as not that his service-connected PTSD has rendered him unable to secure or follow a substantially gainful occupation, dating back to January 25, 2006. This positive opinion was based on a complete review of the claims file along with an interview of the Veteran and supporting rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion. There are no contradictory opinions of record. Based on a review of the medical evidence, the Board finds that he is unemployable based on the nature and severity of his service-connected PTSD. In reaching this decision, the Board has resolved all reasonable doubt in favor of the Veteran. Accordingly, a TDIU from January 25, 2006 is warranted. ORDER Entitlement to a TDIU is granted, effective January 25, 2006, subject to the law and regulations governing the award of monetary benefits. REMAND As indicated previously, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to assist also includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. Pursuant to the November 2010 CAVC Joint Remand, the Board will remand for further development with respect to the Veteran's claim for entitlement to a rating in excess of 70 percent PTSD. Specifically, based on a February 2009 medical record which reflected some increase in symptomatology for the Veteran's PTSD, following his April 2007 VA examination, the Court essentially directed that the Veteran be afforded a new VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). A new examination should therefore be provided to the Veteran. The Board also notes that the claims file reflects that the Veteran has received medical treatment from the VA Medical Center in Muskogee, Oklahoma; however, as the claims file only includes treatment records from that facility dated up to January 2009, any additional records should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Further, as noted above, the Veteran was afforded a BVA video hearing in January 2009. He was represented by the Disabled American Veterans (DAV), at that time. In a November 2010 communication to the Board, the Veteran submitted the appropriate VA Form 21-22a appointing R.V.C. as his new representative. In November 2010 correspondence, the Veteran's new attorney requested that the Veteran be scheduled for a video conference hearing. He indicated that the Veteran plans to be present at the regional office and that counsel will be present with the Veterans Law Judge in Washington, DC. A similar request was made in a March 2011 correspondence. The Board recognizes that the Veteran has already been afforded a BVA hearing as to his increased rating claim for PTSD. However, in light of the fact that the Veteran has new representation, the Board finds sufficient good cause shown to grant his request for a new hearing. A hearing via videoconference must be scheduled at the RO level, and, accordingly, a remand is required. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (citing 38 U.S.C.A. § 7104(a) ("claimant has right to a hearing before [issuance] of BVA decision"); 38 C.F.R. §§ 3.103(a) and (c) (1), 19.9, 19.25, 20.700, 20.704). Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for PTSD. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. Regardless of whether or not the Veteran responds the AMC/RO must obtain the Veteran's treatment records from the VA Medical Center in Muskogee, Oklahoma since January 2009. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Thereafter, schedule the Veteran for an examination to determine the current nature and extent of his PTSD. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should also provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected PTSD. In addition, the examiner should provide a global assessment of functioning score with an explanation of the significance of the score assigned. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's service-connected PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). A complete rationale for all opinions expressed should be provided. If the examiner cannot provide an opinion without resorting to mere speculation such should be stated along with rationale for such an opinion. 3. Upon completion of the above, readjudicate the issue on appeal. 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. 4. The Veteran should be scheduled for a video hearing before the Board at the RO. He should be notified of the date, time and place of such a hearing by letter mailed to his current address of record, with a copy sent to his representative. If he desires to withdraw the hearing, he should do so in writing at the RO. Thereafter, the case should be 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). 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 A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs