Citation Nr: 1210617 Decision Date: 03/22/12 Archive Date: 03/30/12 DOCKET NO. 10-06 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating higher than 50 percent for PTSD. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to February 1971. These matters come before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for rheumatoid arthritis and granted service connection for PTSD and assigned an initial 30 percent disability rating, effective January 18, 2008. In December 2008, the RO assigned an initial 50 percent rating for PTSD, effective August 7, 2008. In an August 2009 decision, a Decision Review Officer (DRO) assigned an effective date of January 18, 2008 for the initial 50 percent rating for PTSD. In March 2010, the Veteran testified at a hearing before the DRO at the RO. A transcript of the hearing has been associated with his claims folder. In August and September 2008 (VA Form 21-4138), the Veteran raised the issues of entitlement to service connection for a bilateral eye disability and erectile dysfunction. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for rheumatoid arthritis and entitlement to an initial rating higher than 70 percent for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since January 18, 2008, the Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, thinking, and mood. 2. The Veteran is service-connected for bilateral hearing loss, rated noncompensable. He is also service-connected for PTSD and the Board is granting an initial 70 percent rating for that disability since the effective date of service connection. His combined disability rating is now 70 percent. 3. The Veteran's service-connected disabilities preclude substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for PTSD have been met since January 18, 2008. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2011). 2. The criteria for a TDIU due to a service-connected disability have been met since January 18, 2008. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The appeal for a higher initial rating for PTSD arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The Board is granting a higher initial rating and TDIU and remanding the appeal for additional development prior to determining whether the Veteran meets the criteria for the maximum schedular rating. No further notice or assistance is needed to assist the Veteran in substantiating the aspects of his appeal decided in this decision. PTSD Initial Rating Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a worklike setting); and inability to establish and maintain effective relationships. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board has considered the Global Assessment of Functioning (GAF) scores assigned during the appeal period. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging from 51-60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). In a February 2008 letter, a licensed clinical social worker from the Vet Center in Ventnor, New Jersey reported that the Veteran experienced social isolation, re-experiencing of in-service trauma, avoidance of thoughts and feelings associated with the trauma, detachment from others, hypervigilance, and a hyperstartle response. He was diagnosed as having chronic PTSD with depression. A February 2008 VA psychiatric evaluation note indicates that the Veteran reported that he was divorced from his second wife, had two sons and had no contact with the older son, received SSA disability benefits, and lived in a trailer by himself. His divorces were due to the fact that he had trouble with intimacy. He had engaged in many sales jobs throughout the years and was engaged in "odds and ends jobs" for limited pay at the time of the evaluation. He experienced a lack of patience, irritability, anger, a hyperstartle response, social isolation, emotional detachment, memories of in-service trauma, avoidance of cues of such trauma, and nightmares. Examination revealed that the Veteran was neat and clean in appearance, was cooperative, and had coherent speech. He did not experience any suicidal or homicidal ideation and his cognition was intact. He was diagnosed as having PTSD. In a March 2008 statement (VA Form 21-4138), the Veteran reported that he was depressed and socially isolated and had abandoned his family and friends. He sometimes spent the entire day in bed and did not leave the house. In a March 2008 letter, the Veteran's sister reported that ever since his return from Vietnam, the Veteran no longer interacted with family and friends, was generally socially isolated, and was unable to keep a job for any significant period of time. An April 2008 VA examination report reveals that the Veteran reported that he received individual psychotherapy for his psychiatric disability and used anti-depressants to treat his symptoms. The medication reportedly caused him to be unable to function. He had been divorced from his second wife for 17 years and lived alone. He had two sons, one of whom he never saw and one who he saw frequently. He did not have any social relationships other than with his son and enjoyed bowling with his son and listening to music. He had hit another person "a long time ago" when the person insulted his girlfriend, but he had never attempted suicide and did not have any problems with substance abuse. Examination revealed that the Veteran was casually dressed. There was restless psychomotor activity, loud speech, a constricted affect, an anxious and dysphoric mood, passive and transient homicidal ideations, obsessions, and cleaning compulsions. Also, the Veteran experienced interrupted sleep and daily panic attacks and sometimes became verbally aggressive. However, attention, orientation, judgment, insight, and memory were all intact, thought processes were unremarkable, there were no delusions, hallucinations, or suicidal thoughts, impulse control was good, the Veteran did not engage in inappropriate behavior, he was able to maintain minimum personal hygiene, and there were no problems with activities of daily living. The Veteran experienced recurrent and intrusive distressing recollections of in-service trauma, he avoided activities, places, or people that aroused recollections of the trauma; there was a markedly diminished interest or participation in significant activities, and a restricted range of affect, and the Veteran experienced irritability or outbursts of anger, hypervigilance, and a hyperstartle response. Overall, he had experienced chronic moderate symptoms of PTSD since service which caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. There were no periods of remission. The Veteran had worked in sales, but was unemployed at the time of the April 2008 VA examination. He had retired in 1996 due to arthritis. A diagnosis of moderate to severe chronic PTSD was provided and a GAF score of 45 was assigned, indicative of serious impairment. The psychologist who conducted the April 2008 VA examination concluded that the symptoms of PTSD resulted in deficiencies in judgment, thinking, family relations, work, and mood in that the Veteran was quick to anger, experienced negative thinking, had minimal family relations, had been unable to hold a job for any significant period of time, and experienced anxiety and depression. Although his non service-connected arthritis prevented him from working, his anxiety and depression were obstacles to his productivity and reliability. A July 2008 psychiatric examination report from Walter G. Florek, Ph.D. reveals that the Veteran reported that following service he held numerous jobs for short periods of time and was fired from one job due to an outburst of anger. He was most recently employed as a disc jockey in a bar for 18 years until he was diagnosed as having rheumatoid arthritis at the age of 47. He continued to occasionally work as a disc jockey at special parties approximately 3 to 4 times a month. He had been divorced from his second wife since 1987, lived alone, had no friends, and preferred to stay at home. The Veteran was dressed appropriately and was cooperative with the medical professional who conducted the July 2008 examination. He reported that he was easily angered, impatient, and often emotional with wide mood swings. Examination revealed that he was anxious and exhibited symptoms of depression. He experienced a hyperstartle response, flashbacks and intrusive thoughts of in-service trauma, sleep difficulties, nightmares, and frequent crying spells. However, he was alert and oriented to person, place, and time, memory was intact, and eye contact was good. Diagnoses of chronic PTSD and moderate major depression were provided and a GAF score of 52 was assigned, indicative of moderate impairment. An August 2008 VA examination report indicates that the Veteran continued to live alone; but continued to have a relationship with his older son, occasionally socialized with three female friends, and enjoyed using a metal detector and bowling. His two marriages had ended in divorce because he was unable to keep a job and realized that he did not want to be married and would not be a good parent. He had been involved in two verbal confrontations, but there were no suicide attempts or issues associated with substance abuse. He had been engaged in many jobs, but was unable to maintain employment, retired from full time employment in 1996 due to rheumatoid arthritis, and was in receipt of SSA disability benefits for that disability. However, he continued to work as a disc jockey several days a month and preferred to work alone. Examination revealed that the Veteran was appropriately dressed and cooperative. He had an appropriate affect, was fully oriented, did not experience any delusions, hallucinations, suicidal/homicidal thoughts, or memory impairment, was able to maintain minimal personal hygiene, had adequate insight and judgment, and did not have any problems with activities of daily living. However, eye contact was fleeting, psychomotor activity was hyperactive, speech was loud, and impulse control was fair. Further, the Veteran's mood was anxious, his thought process was rambling, he experienced obsessions and compulsions, feelings of guilt, hopelessness, depression, and worthlessness, extensive periods of dissociation, flashbacks, social detachment and isolation, impaired concentration, interrupted sleep, nightmares, several panic attacks per week, recurrent and intrusive memories of in-service trauma, markedly diminished interest or participation in significant activities, irritability or outbursts of anger, and hypervigilance. Also, he had been involved in several verbal confrontations. Such symptoms were moderate to severe and chronic and there were no remissions. The Veteran was diagnosed as having moderate to severe chronic PTSD and a GAF score of 45 was assigned, indicative of serious impairment. As for the Veteran's overall social and occupational impairment due to PTSD, the psychologist who conducted the examination concluded that he had been divorced twice, had minimal socialization and social support, and had been unemployed due to both PTSD and arthritis. His PTSD symptoms were moderate to severe and his prognosis was fair to poor. Although the Veteran's non service-connected arthritis prevented him from working, the examiner opined that the Veteran's anxiety, irritability, poor anger management, and distractibility were obstacles to his ability to manage gainful employment for an extended period of time. During the March 2010 hearing, the Veteran reported that he had been unable to keep a job, was unable to maintain relationships due to anger, and experienced obsessions and compulsions, depression, social isolation, and flashbacks. He occasionally went to dinner with a female friend. A March 2010 letter from the Vet Center in Ventnor, New Jersey indicates that the Veteran reported that he was unable to get along with others and hold jobs because of difficulty interacting with males. Such difficulty was due to an in-service sexual assault by a fellow serviceman. He experienced anger and irritability and his PTSD symptoms were severe. In letters dated in March 2010, the Veteran's stepfather and friend reported that following service, the Veteran was no longer outgoing, he had difficulties initiating and maintaining personal relationships, and experienced irritability, anger, impaired sleep, depression, obsessions, compulsions, and nightmares. An October 2010 VA examination report reveals that the Veteran reported that he had continued to live alone since his divorce, 20 earlier; but maintained a close relationship with his older son and talked on the telephone with several friends. He had gotten into a physical confrontation within the previous year, but there was no history suicide attempts or substance abuse. He had been retired since 1996 due to rheumatoid arthritis. Examination revealed that the Veteran was casually dressed, had intact attention, memory, insight, and judgment, was fully oriented, had an unremarkable thought process, did not experience any delusions, hallucinations, or homicidal thoughts, and was able to maintain minimum personal hygiene. However, his psychomotor activity was tense, his speech was loud, he was irritable and had a constricted affect, his mood was anxious and depressed, and he experienced obsessions, passive and transient suicidal thoughts, impaired sleep, irritability, obsessive/ritualistic behavior, weekly panic attacks, episodes of violence, fair impulse control, hypervigilance, and a hyperstartle response. Such symptoms were chronic and moderate to severe in intensity and there were no periods of remission. A diagnosis of chronic moderate to severe PTSD was provided and a GAF score of 45 was assigned, indicative of serious impairment. The psychologist who conducted the October 2010 VA examination concluded that the Veteran's PTSD resulted in impairment in judgment, thinking, family relations, work, and mood. The examiner explained that the Veteran's judgment was fair to poor depending on the situation; he experienced obsessions, and had experienced difficulty managing a job when he was employed. Further, his anxiety, depression, irritability, hypervigilance, and anger were major obstacles to his ability to relate to and work with others. In a January 2011 statement, the Veteran reported that he was unable to maintain relationships and employment due to problems interacting with others. He experienced social isolation, anger, flashbacks, and occasional suicidal thoughts. Analysis--PTSD The evidence reflects that the Veteran has exhibited deficiencies in most of the areas needed for a 70 percent rating for PTSD since the effective date of service connection. He has not engaged in any significant full time employment since 1996, he has reported that he experienced difficulty maintaining employment due to his PTSD symptoms, and several medical professionals have concluded that his PTSD symptoms (such as anger and irritability) would make it difficult for him to maintain gainful employment. He has been divorced throughout the entire appeal period and has reported that the divorces were due, at least in part, to PTSD related symptoms. Although he maintains a close relationship with his older son and has some social contacts, he generally remains alone and isolated at home. Furthermore, the Veteran has experienced such symptoms as anxiety, depression, impaired concentration, difficulty sleeping, nightmares, flashbacks, intrusive thoughts about in-service trauma, suicidal ideation, obsessions, compulsions, hypervigilance, a hyperstartle response, and panic attacks. These findings are indicative of deficiencies in the areas of work, family relations, thinking, and mood The Veteran has been diagnosed as having psychiatric disabilities other than PTSD, including depression. However, the portion of his impairment that is due to PTSD has not been distinguished from that portion which is due to other psychiatric disabilities. Where the symptoms of a service-connected disability cannot be distinguished from non-service connected manifestations, all the manifestations will be considered part of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)). Accordingly, all of the Veteran's psychiatric symptoms are attributed to the service-connected disability. Id. In sum, the Veteran has experienced impairment in most of the areas of work, school, family relations, judgment, thinking, and mood due to PTSD since the effective date of service connection and the majority of the GAF scores assigned throughout the appeal period are indicative of serious impairment. Accordingly, the Board finds that an initial 70 percent rating for PTSD is warranted since the effective date of service connection. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9411. TDIU The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence reflects that the Veteran has not engaged in substantially gainful employment at any time during the appeal period. Given the evidence of a current service-connected disability, the Veteran's claim for the highest rating possible, and the evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran has been granted service connection for the following disabilities: bilateral hearing loss, rated noncompensable; and PTSD, now rated 70 percent disabling. His combined disability rating is now 70 percent. The Veteran; therefore, meets the percentage requirements for a TDIU. 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. A May 2006 VA rheumatology telephone contact note reveals that the Veteran was being treated for rheumatoid arthritis, which resulted in fatigue, joint inflammation (swelling) and joint pain and stiffness. A registered nurse practitioner opined that all such symptoms interfered with the Veteran's ability to work full time and that he was disabled due to rheumatoid arthritis. Medical records dated from February 2008 to March 2009, a September 2008 "Veteran's Application for Increased Compensation Based on Unemployability" (VA Form 21-8940), and the VA examination reports dated in April and August 2008 and October 2010 reveal that the Veteran reported that he had a high school education, that he worked as a mail clerk prior to service, and that following service he worked in many different jobs until 1996, at which time he retired due to arthritis. While he was employed, he was unable to maintain jobs for extended periods of time due to PTSD symptoms. After he stopped working full time, he occasionally worked alone 4 to 8 hours a week as a disc jockey, but eventually stopped such employment due to the progression of arthritis symptoms. He was granted SSA disability benefits in April 1999 due to rheumatoid arthritis and other inflammatory polyarthropathies. The examiners who conducted the April and August 2008 and October 2010 VA examinations opined that while the Veteran's arthritis prevented him from working, he was also unable to work due to PTSD and that his anxiety, depression, irritability, poor anger management, hypervigilance, and distractibility were major obstacles to his productivity, reliability, ability to relate to and work with others, and ability to maintain gainful employment for an extended period of time. An unappealed rating decision dated in December 2008 reflects that entitlement to a TDIU was denied. Overall, the evidence indicates that the Veteran retired from full time employment in 1996, he has not engaged in full time employment since that time, any employment since 1996 was, at most, part time, and the most recent evidence reflects that he is not engaged in any employment. Although he has consistently reported that he stopped his full time and part time employment due to rheumatoid arthritis and he is in receipt of SSA disability benefits based solely on that disability, he has reported that while he was employed he was unable to maintain jobs for any extended period of time due to his PTSD symptoms. Further, several medical professionals have opined that his psychiatric symptoms would impair his ability to maintain gainful employment and the majority of the GAF scores assigned throughout the appeal period reflect an inability to work. The evidence is at least in equipoise as to whether the service-connected disabilities prevent the Veteran from securing and following substantially gainful employment consistent with his education and occupational experience. Entitlement to a TDIU is, therefore, granted. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). ORDER Entitlement to an initial 70 percent rating for PTSD is granted, effective January 18, 2008. Entitlement to a TDIU is granted, effective January 18, 2008. REMAND Medical records, including a January 2011 VA rheumatology treatment note, reveal that the Veteran has been diagnosed as having rheumatoid arthritis. He contends that the current rheumatoid arthritis is related to his service-connected PTSD and he has submitted several pieces of medical literature which reflect the possible existence of such a relationship. In August 2008, a VA physician opined that the Veteran's rheumatoid arthritis was not caused by or a result of his PTSD. The physician reasoned that rheumatoid arthritis is an autoimmune disease where the body produces antibodies against a certain joint, and that such a disability is not caused by stress. An October 2010 VA examination report includes an opinion that it was likely ("more likely than not") that the Veteran's rheumatoid arthritis was not related to PTSD. This opinion was based on the fact that the Veteran had been diagnosed as having PTSD several years prior to the examination, but that rheumatoid arthritis had its onset approximately 13 years prior to the examination. The rheumatoid arthritis was most likely related to a combination of various environmental factors in addition to genetic factors. The August 2008 and October 2010 opinions are inadequate because the medical literature provided by the Veteran was not acknowledged or considered in formulating the opinions. Furthermore, the opinions are limited to whether the current rheumatoid arthritis was "caused" by the service-connected PTSD. However, service connection may also be granted for a disability that is "aggravated" by a service-connected disability and no opinion has been provided as to any possible aggravation. 38 C.F.R. § 3.310 (2011). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2011); see 38 C.F.R. § 19.9 (2011). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The Veteran has alleged that he was exposed to herbicides in service while stationed aboard the U.S.S. Intrepid in 1968/1969 in the waters off the coast of Vietnam. During that time, a canister of Agent Orange that was reportedly being transported aboard the ship exploded and he inhaled the fumes. VA has adopted specific procedures to be followed when a veteran alleges exposure to herbicides being transported on a ship. VA's Adjudication Procedure Manual Rewrite, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(l) (December 16, 2011), directs that where a veteran claims that he served on a ship that stored or transported herbicides, a copy of the U.S. Army and Joint Services Records Research Center's (JSRRC's) memorandum shown in M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(m) is to be placed in his claims file. This document will substitute for individual inquiries to the Compensation Service's Agent Orange mailbox and to the JSRRC and will establish that the JSRRC has no evidence to support a claim of herbicide exposure based solely on shipboard service. The Court has consistently held that evidentiary development procedures provided in VA's Adjudication Procedure Manual are binding. See Campbell v. Gober, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated, as part of its duty to assist, to comply with the applicable M21-1 provisions concerning service-connected death claims and remanding for compliance with that provision and applicable regulations); Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1). Although the Veteran has alleged exposure to herbicides while stationed aboard the U.S.S. Intrepid, the record does not show that any further development as required by M21-1 has been undertaken. Specifically, the JSRRC's memorandum shown in M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(m) has not been associated with his claims file. The absence of this memorandum is potentially prejudicial in that notice to the Veteran would serve to inform him of information needed to substantiate the claim and provide an opportunity for him to submit the missing information. As for the appeal for an initial rating higher than 70 percent for PTSD, the VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Evidence associated with the Veteran's claims file reflects that he has received psychiatric treatment at the Vet Centers in Ventnor, New Jersey and Lakewood, New Jersey. There is no evidence that any efforts have been taken to obtain all available treatment records from these treatment providers. Any such records are directly relevant to the higher initial rating issue currently on appeal. VA has a duty to obtain any such relevant records. 38 U.S.C.A. § 5103A(b), (c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, medical records indicate that the Veteran has received psychiatric treatment from Dr. Florek in Lakewood, New Jersey. These records have not yet been obtained. VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). Thus, a remand is also necessary to attempt to obtain any relevant records from Dr. Florek. Accordingly, the case is REMANDED for the following action: 1. Consistent with M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(l), place a copy of the JSRRC's memorandum shown in M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(m) in the Veteran's claims file. 2. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability from the Vet Centers in Ventnor and Lakewood, New Jersey. All efforts to obtain these records must be documented in the claims file. Efforts to obtain these records should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. 3. Ask the Veteran to complete an authorization to obtain all records of his treatment for a psychiatric disability from Dr. Florek in Lakewood, New Jersey. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. All efforts to obtain these treatment records should be documented in the claims file. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims and he should be advised to submit any records in his possession. All such notification must be documented in the claims file. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the etiology of his current rheumatoid arthritis. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current rheumatoid arthritis (any such disability diagnosed since January 2008) had its onset in service or in the year immediately following service, is related to potential herbicide exposure in service, or is otherwise the result of a disease or injury in service. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current rheumatoid arthritis (any such disability diagnosed since January 2008) was either caused (in whole or in part) or aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected PTSD. The examiner should note whether there is medical evidence created prior to any aggravation, or the earliest evidence created at any time between the time of aggravation and medical evidence showing the current level of severity of the current disability, that shows a baseline of the rheumatoid arthritis prior to the aggravation. In formulating the above opinions, the examiner must acknowledge and discuss the medical literature submitted by the Veteran pertaining to the possible relationship between PTSD and rheumatoid arthritis. The examiner must provide reasons for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for arthritis in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 5. The AOJ should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 6. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran 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. 2011). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs