Citation Nr: 1125032 Decision Date: 07/01/11 Archive Date: 07/14/11 DOCKET NO. 08-06 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's posttraumatic stress disorder for the period prior to January 10, 2007, to include entitlement to a total rating for compensation purposes based on individual unemployability. 2. Entitlement to a disability evaluation in excess of 50 percent for the Veteran's posttraumatic stress disorder for the period on and after January 10, 2007, to include entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from November 1971 to August 1977. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Montgomery, Alabama, Regional Office (RO) which, in pertinent part, established service connection for posttraumatic stress disorder (PTSD); assigned a 10 percent evaluation for that disability; and effectuated the award as of January 12, 2004. In February 2008, the RO increased the evaluation for the Veteran's PTSD from 10 to 50 percent and effectuated the award as of January 10, 2007. In January 2009, the RO denied a total rating for compensation purposes based on individual unemployability (TDIU) due to multiple service-connected disabilities. Although there is no indication that the Veteran filed a notice of disagreement with that determination, he asserts that he is unable to work due to the PTSD alone, accordingly, that issue is considered part of his claim for a higher initial rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam). In March 2011, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. The Board observes that the Veteran has appealed from the initial evaluation assigned for his service-connected PTSD. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that it was specifically not a claim for an increased disability evaluation. However, the Court did not provided a specific name for the issue in lieu of "increased disability evaluation." In the absence of such direction, the Board has framed the issues as entitlement to a disability evaluation in excess of 10 percent for the Veteran's PTSD for the period prior to January 10, 2007, to include entitlement to a total rating for compensation purposes based on individual unemployability and a disability evaluation in excess of 50 percent for his PTSD for the period on and after January 10, 2007, to include entitlement to a total rating for compensation purposes based on individual unemployability. The Veteran is not prejudiced by such action. The Board has not dismissed any issue and the law and regulations governing the evaluation of disabilities are the same regardless of how the issue is styled. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND The Veteran asserts that his service-connected PTSD is manifested by significant social and occupational impairment which renders him unemployable. At the March 2011 videoconference hearing before the undersigned Veterans Law Judge, the Veteran testified that his PTSD symptomatology had increased in severity and encompassed suicidal and homicidal thoughts. He advanced that his PTSD rendered him unable to work and merited assignment of a 70 percent evaluation. The accredited representative requested that the Veteran be scheduled for an additional evaluation to properly ascertain his current PTSD disability picture. Initially, the Board observes that the Veteran has repeatedly advanced that his PTSD renders him unemployable. The Court of Appeals for Veterans Claims has clarified that a total disability rating based on individual unemployability is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam); Mayhue v. Shinseki, 24 Vet. App. 273, 280 (2011). The Veteran was last afforded a VA psychiatric examination for compensation purposes in July 2008. In reviewing the VA clinical documentation of record dated in March 2011 and April 2011, which was submitted to the Board by the Veteran, the Board observes the Veteran's PTSD symptomatology has apparently increased in severity and encompasses suicidal thoughts. The VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As the claims files are being returned to the RO, they should be updated to include any VA treatment records compiled since January 2009. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folders all relevant VA clinical documentation pertaining to treatment of the Veteran from January 2009. 2. Then schedule the Veteran for a VA examination for compensation purposes in order to determine the current nature and severity of his PTSD. All indicated tests and studies should be accomplished and the findings then reported in detail. A Global Assessment of Functioning (GAF) score and an explanation of what the score should be provided. The examiner should advance an opinion as to the occupational impairment associated with the Veteran's PTSD. Send the claims folders to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. The examiner is requested to provide a rationale for all stated opinions. 3. Then readjudicate the issues of an evaluation in excess of 10 percent for the Veteran's PSTD for the period prior to January 10, 2007, to include entitlement to a total rating for compensation purposes based on individual unemployability and an evaluation in excess of 50 percent for his PTSD for the period on and after January 10, 2007, to include entitlement to a total rating for compensation purposes based on individual unemployability. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. The Veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).