Citation Nr: 1237761 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-21 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), rated 10 percent disabling from December 20, 1989, to September 23, 2004, and 30 percent disabling as of September 24, 2004. 2. Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to February 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD an assigned a 10 percent rating, effective December 20 1989, and a 30 percent rating, effective September 24, 2004. The Veteran continues to appeal for higher ratings for this disability. See AB v. Brown, 6 Vet. App. 35 (1993). A September 2009 rating decision denied entitlement to TDIU. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In April 2012, the Veteran's attorney submitted a certificate of ineligibility from the Ohio Rehabilitation Services Commission. It was also indicated that the Veteran's had an Individualized Plan for Employment in December 2004. These records are pertinent to the Veteran's claim and need to be obtained. When a medical examination is required to fulfill the statutory duty to assist the veteran, this duty must include obtaining and considering the prior medical treatment records. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). The latest VA compensation examination was conducted in March 2010. The record at that time contained the Veterans award of disability insurance benefits from the Social Security Administration (SSA) - effective June 15, 1989, due to anxiety-related disorders and personality disorders. However, in May 2010, additional medical records from SSA were submitted. Therefore, the Veteran must be scheduled for another compensation examination which considers these records. The Veteran's attorney correctly points out that the January 2008 Board decision which granted service connection for PTSD found that the Veteran's in-service stressors have been corroborated. These stressors will be listed below and the compensation examiner will be informed that they have already been corroborated. The RO received the Veteran's claim for service connection for a psychiatric disorder in December 1989, and the September 2008 rating decision adjudicated the appropriate disability rating for this condition under the both the old and new rating criteria. The RO must again consider both the old and new rating criteria on remand. His appeal for TDIU is inextricably intertwined with this claim, inasmuch as an increased rating for PTSD could affect the outcome of the TDIU claim. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). See also Kellar v. Brown, 6 Vet. App. 157 (1994) and Harris v. Derwinski, 1 Vet. App. 180 (1991). Further consideration of this claim must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's file from the Ohio Rehabilitation Services Commission. If these records are not available, a negative reply is required. 2. Obtain any additional psychiatric VA treatment records not currently of record. 3. Schedule the Veteran for a VA psychiatric examination. The examiner should conduct a detailed mental status examination. Any necessary tests or studies should also be conducted. The examiner should be sent the Veteran's claims files and copy of this remand. It is requested that a Global Assessment of Functioning (GAF) score be assigned consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The examiner is informed that the following in-service stressors have already been corroborated: the Veteran witnessed and intervened in a sexual assault on another service member; he was personally assaulted and threatened himself; and that he was in fear of his life while living in an atmosphere of racial tension, and that that there were ongoing racial conflict and discrimination within his unit. The examiner should discuss the prior medical evidence regarding the Veteran's service-connected PTSD and reconcile any contradictory evidence regarding the level of his occupational impairment and any prior medical findings. After a review of the prior VA examination reports and treatment records, the examiner should render a medical opinion as to which symptoms and what social and occupational impairment are attributable to the service-connected PTSD as opposed to any nonservice-connected condition(s) (i.e., major depression and/or any other disorder identified upon examination). If it is impossible to distinguish the symptomatology and/or social and occupational impairment due to the nonservice-connected condition(s), the examiner should so indicate. The VA examiner should also express a specific opinion as to the impact of the Veteran's service-connected PTSD on the Veteran's ability to obtain and maintain substantially gainful employment. 4. Following completion of the foregoing, review the claims folder and ensure that all of the above development actions have been conducted and completed in full. Ensure that the examination report includes fully detailed descriptions of all opinions requested. If it does not, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2; see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, readjudicate the Veteran's claim for a higher rating for PTSD, with application of all appropriate laws and regulations and consideration of the additional evidence developed upon remand. In readjudicating the veteran's claim, the RO should: (a) Consider the claim under both the old and the revised rating criteria for evaluating mental disorders. See VAOPGCPREC 11-97; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). (b) Review the evidence of record and consider all the evidence of record to determine whether the facts show that he was entitled to a higher disability rating for this condition at any period of time since his original claim. See Fenderson v. West, 12 Vet. App. 119 (1999). (c) Then readjudicate the TDIU claim. (d) Thereafter, subject to current appellate procedures, this claim should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ M. TENNER Acting 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) (2012).