Citation Nr: 1301577 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-47 218A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from March 1964 to April 1969. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the RO. In that decision, the RO granted service connection for PTSD and assigned a 30 percent rating effective from November 16, 2009. In a June 2010 rating decision, the RO increased the rating for the Veteran's PTSD from 30 to 50 percent effective from July 17, 2009. As a higher schedular rating for the PTSD is possible, this issue remains before the Board on appeal and has been characterized as noted on the title page. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO in September 2012; a transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of entitlement to a TDIU 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 PTSD has most nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent rating for the PTSD are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant 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 notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a December 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for PTSD, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, as this appeal stems from the initial grant of service connection for PTSD, the notice letter did not contain an explanation of the general rating criteria relevant to his PTSD. The June 2010 Statement of the Case (SOC) set forth applicable criteria for ratings for PTSD. After issuance of the June 2010 SOC, and opportunity for the Veteran to respond, the February 2012 Supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the VA treatment records and examination reports and private treatment records. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). During the hearing the VLJ clarified the issue, determined that there may additional evidence and addressed the Veteran's manifestations. Such actions supplement VCAA and complies with 38 C.F.R. § 3.103 (even if not applicable). Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). Here the disability has not significantly changed and a uniform evaluation is warranted. Here, the disability has not significantly changed and a uniform evaluation is warranted. The initial rating for the Veteran's PTSD has been assigned pursuant to Diagnostic Code 9411. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a 50 percent rating is assigned 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 rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." GAF scores between 41 and 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 between 51 and 60 reflect moderate symptoms, (that is, flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, contacts with peers or co- workers). There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Analysis In this case, the Board concludes that the symptoms of the Veteran's PTSD have most nearly approximated occupational and social impairment with deficiencies in most areas. A July 2009 VA mental health treatment record reflects that a recent traumatic event triggered flashbacks of an event the Veteran experienced in Vietnam. The recent event involved having an infant being thrown from an overpass onto the highway in front of his vehicle as he traveled in Oahu. The Veteran's vehicle crushed the infant and as he knelt by infant's body, he reexperienced a similar incident in Vietnam involving a child he knew that he unwittingly killed in a firefight at night when his base was attacked by enemy combatants. He had tried for 40 years to suppress this memory of Vietnam and had put up a façade of a happy, smiling person in an attempt to mask the hurt, anger and depression he had felt since Vietnam. He described how his anger and distrust had invaded all aspects of his life, including his marriage. He and his wife had divorced once but reunited despite continuing difficulties with anger. The examiner provided the Veteran with a basic understanding of PTSD. Specifically, the examiner explained how the persistent symptoms become distorted and disruptive in day-to-day living. The examiner challenged the Veteran to think of his experiences in Vietnam not from the perspective of blame and guilt but rather grief and loss. The examiner concluded that the Veteran's symptoms were indicative of a moderately severe PTSD. A topic for future discussion was the Veteran's inability to share his experience with his wife and her unwillingness to hear about them. In a September 2009 statement, the Veteran's treating VA psychologist noted that the Veteran's PTSD symptoms, including depression, avoidance, emotional estrangement, distrust of others, physiological reactivity to reminders of the trauma and hyperarousal (with sleep disturbance, heightened irritability and decreased concentration), had been exacerbated by the recent trauma (having the infant thrown onto the highway in front of his vehicle). He had attempted to maintain control of his emotions through various maladaptive means for 40 years; however, his emotions were now overwhelming as a result of his traumatic incident in Vietnam being exposed. He had experienced his PTSD symptoms since his return from Vietnam but due to a lack of familial support, he had attempted to avoid any discussion of his symptoms and failed to recognize the symptoms were part of a chronic and pervasive disorder. The Veteran's treating psychologist stated that because the Veteran continued to experience symptoms of PTSD, he showed serious impairment in social/familial, occupational and/or intrapersonal areas of functioning. The psychologist diagnosed the Veteran with chronic and severe PTSD with marked depression and a GAF score of 52 was assigned. The psychologist concluded that the Veteran's PTSD was moderately severe to severe, varying with the nature of external events which serve as reminders of his combat-related trauma and/or his perceived emotional rejection and withdrawal upon his return from Vietnam. The Veteran's PTSD disrupted his ability to adjust to marital and familial expectations and disrupted his ability to effectively resolve underlying issues which contribute to his depression and anger. The psychologist noted that the Veteran's recent gainful employment was dependent on the trusting relationship he had developed with his current employer and it was unlikely that he could remain in a competitive occupational status if his current employment ended. A December 2009 report of VA examination reflects the Veteran's complaint of PTSD symptoms such as nightmares, intrusive thoughts, avoidant behavior, detachment from others, diminished interest, restricted affect, impaired sleep and concentration, irritability/anger, hypervigilance and exaggerated startle response. He worked as a delivery man and reportedly got along with his co-workers and supervisors. He and his wife married and divorced prior to his prison sentence; upon his release they remarried. He loved his wife but acknowledged there was much marital discord because of his irritability and detachment. He had two grown daughters and was uninvolved and detached from them during their childhood but was making efforts to reconnect with his family but rarely socialized and preferred to be alone. He did not engage in leisure activities. He denied current assaultiveness; however, in the past he reportedly shot two individuals who made threats against his family. He experienced suicidal ideation in the past but denied any current suicidal ideation. His PTSD symptoms worsened when he witnessed the infant being thrown onto the highway in front of his vehicle which reminded him of experiences in Vietnam. The examining psychologist indicated that the Veteran had no impairment of thought process or communication, delusions or hallucinations, inappropriate behavior, memory loss or impairment, obsessive or ritualistic behavior or panic attacks. Although he had experienced past suicidal ideation, he had no current suicidal ideation. His ability to maintain minimal personal hygiene; his orientation to person, place, and time; and, his rate and flow of speech were all normal. He had noted sleep impairment, a moderately depressed mood and experienced moderate anxiety. In the past the Veteran had exhibited impaired impulse control but had learned to control his impulses. The examining psychologist assigned the Veteran a GAF score of 60 and reported that the Veteran experienced mild occupational impairment due to impaired concentration. However, he generally performed satisfactorily at work because he was able to work alone most of the time and worked for people who understood his problems with PTSD. The examining psychologist acknowledged that the Veteran would likely experience more significant occupational impairment if he had to work for a different organization or had to engage in frequent contact with other people. It was also noted that the Veteran experienced significant social impairment due to detachment and irritability resulting in marital discord and strained relationships with his family members. The Veteran tended to avoid social and leisure activities. January 2010 through August 2011 VA mental health treatment records document the Veteran's regular sessions with his psychologist for treatment of the symptoms associated with his PTSD. In a March 2010 statement, the Veteran's treating VA psychologist reported that the Veteran was experiencing severe PTSD symptoms, at times worsening rather than improving, associated with his sense of responsibility for the death of the Vietnamese child he unknowingly killed in a combat mission during his time in Vietnam. His psychologist noted that the Veteran's re-experiencing of the combat trauma had been exacerbated by the recent traumatic event he experienced (having an infant being thrown onto the highway in front of his moving vehicle) and the continuing court case related thereto. The psychologist stated that the Veteran's PTSD symptoms had led to a marked disturbance in mood which ranged from severe depression to intense range. He was also distrusting of others, withdrawn and isolated which led to difficulty in establishing and maintaining social relationships. The Veteran's heightened distrust also produced an increase in his hypervigilance which adversely affected his ability to clearly and, at times, accurately interpret the nuances of social situations. Thus, he struggled to exercise judgment in a way he had previously been able to. The psychologist reported that the Veteran's thought pattern was distorted and the recent traumatic event created a constant internal battle to remain in the here and now; however, the Veteran had frequent flashbacks to the traumatic event in Vietnam despite his efforts to put it behind him. The psychologist noted that the Veteran's PTSD symptoms continued to create serious impairment in social/familial, occupational and/or intrapersonal areas of his functioning. Though the Veteran had been able to maintain gainful employment (a recent occurrence), the psychologist opined that his ability to do so was restricted to his current work setting (i.e., he was unlikely to be able to secure or maintain competitive employment in another setting). His continued employment was highly dependent on the trusting relationship he had developed with his current employer and much more contingent on his employer's actions toward him rather than the Veteran's ability to make reasonable adjustments to cope with routine demands of a work setting. Thus, the examiner concluded that given the Veteran's current severity of PTSD, his reliability and potential as a productive worker was at risk. The psychologist assigned the Veteran a GAF score of 45. In a December 2010 statement, the Veteran's treating VA psychologist reported that the Veteran continued to report significant problems in adjusting, as expected, in relating in his marriage, family and work settings. Specifically, at work, there were instances where his actions resulted in reprimand and easily could have escalated into violence. For example, the Veteran recently head-butted a newly appointed supervisor who he felt was not doing his job as it related to a safety issue at the workplace. The supervisor was younger, less experienced and refused to listen to the Veteran's suggestion for how something could be done more efficiently and safely. The Veteran thought the supervisor's actions were authoritarian (reminding him of an inexperienced officer in Vietnam whose actions put the platoon in danger) and he did not like authoritarian people. The Veteran was not in a supervisory or management role at his workplace but he described how he made decisions and expected others to make decisions as well. He got aggravated when others failed to abide by his key principal of survival ("when I'm responsible for things, I take it upon myself to make it right because I owe it to the company."). The psychologist also noted the Veteran's report of daily arguments with his wife and his feelings of anger all the time. The Veteran was aware of these feelings and did not want to feel that way. He also commented that the holidays would be difficult because since his memories were tied to Christmas and it was a time when he would be expected to be around many more people than he was comfortable being around as a result of his PTSD. The psychologist also documented the Veteran's report of a decreasing ability to trust others, including difficulty trusting his wife. The Veteran felt that his wife did not understand nor want to put effort into understanding how his PTSD symptoms were triggered in various situations. He acknowledges that the claims process was exacerbating his symptoms but his wife seemed to have no regard for how distressed he was when she talked about this or questioned him. As a result, he was constantly on guard and avoided situations where she might raise the issue. Consequently, he was more estranged from his wife than previously noted. The Veteran's distrust extended to those who might be in a position of caretaking for him, including physicians. He also continued to exhibit depression as a part of his PTSD. The psychologist concluded that the Veteran continued to experience symptoms of PTSD that were intense, at times, and disruptive to his live. He showed serious impairment in the social/familial, occupational and/or intrapersonal areas of functioning. The psychologist assigned the Veteran a GAF score ranging between 45-50. The report of January 2012 reflects that the criteria to support the Veteran's diagnosis of PTSD was wholly unchanged from the previous examination report, i.e., the Veteran had nightmares, intrusive thoughts, avoidant behavior, detachment from others, diminished interest, restricted affect, impaired sleep and concentration, irritability/anger, hypervigilance and exaggerated startle response. His PTSD symptoms included anxiety, chronic sleep impairment and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran's assertions regarding marital discord and impairment in occupational functioning also remained wholly unchanged from the previous examination report. The examining psychologist indicated that the statement that best summarized the Veteran's level of occupational and social impairment due to the PTSD was occupational and social impairment with reduced reliability and productivity. Based on the above, despite his lack of most of the specific symptomatology listed in the criteria for a 70 percent rating, the evidence reasonably demonstrates that the Veteran's PTSD has been productive of symptomatology of a severe nature, i.e., he exhibits occupational and social impairment with deficiencies in most areas. The Veteran's testimony offered at the September 2012 Board hearing and the evidence clearly demonstrates that the Veteran has serious impairment in social/familial, occupational and/or intrapersonal areas of his functioning. He is shown to have distrust of his wife and considerable marital discord and chooses to withdraw and isolate himself rather than engage in social interactions. Additionally, though employed, his employment may be a product of his employer's accommodations for him rather than his ability to make reasonable adjustments to cope with routine demands of a work setting. While the Board is aware that the December 2009 and January 2012 reports of VA examination were indicative of PTSD of less severity, the examiner, at least in the December 2009 report of VA examination, noted that the Veteran experienced significant social impairment due to detachment and irritability resulting in marital discord and strained relationships and acknowledged that the Veteran would likely experience more significant occupational impairment if he had to work for a different organization or had to engage in frequent contact with other people. The Board has also considered the lay pleading and testimony and has found the Veteran to be credible. This taken with the totality of the other evidence of record persuades the Board to conclude that the Veteran's PTSD has more nearly approximated occupational or social impairment with deficiencies in most areas. In finding that a 70 percent rating is warranted, the Board has not required that an exhaustive list of symptoms be met. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Rather, the Board finds the Veteran's overall disability picture reflects that the effects of his PTSD on occupational and social impairment. 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 evidence does not indicate that the Veteran's PTSD caused total occupational and social impairment, particularly given the fact that the Veteran had been able to work for much of the appeal period, and, taken together with the other evidence noted above indicating at most severe PTSD but not total impairment, with few, if any, of the symptoms listed in the criteria for a 100 percent rating, the Board finds that a 100 percent rating is not warranted. The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point has the disability been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms and effects of the Veteran's PTSD are fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's PTSD is contemplated by the 70 percent rating, which takes account of both the individual symptoms and the overall impairment caused by the PTSD. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the above evidence reflects that the effects of the PTSD on the Veteran's employment did not constitute marked interference with employment, i.e., beyond that contemplated by the assigned 70 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for PTSD is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's PTSD has most nearly approximated occupational and social impairment of a degree warranting a 70 percent rating since the July 17, 2009 effective date for the award of service connection. 38 C.F.R. § 4.7. The benefit-of-the-doubt doctrine is not for application, and a rating of 70 percent, but no higher, is therefore warranted for the Veteran's PTSD. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to a 70 percent rating for PTSD is granted, subject to controlling regulations governing the payment of monetary awards. REMAND Each time a Veteran files a claim for an increased rating and submits evidence of unemployability due to this disability, he has implicitly made a claim for a TDIU. The TDIU is not a separate claim that must be raised with specificity; it is a component of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (TDIU "is part and parcel of the determination of the initial rating for [a] disability"). In this case, the Veteran's claim for an increased rating for PTSD included a claim for a TDIU, as the evidence indicates that he may be unemployable due to his PTSD. The RO has not, however, adjudicated this claim for a TDIU in its December 2009 rating decision, June 2010 SOC, October 2011 or February 2012 SSOC. The courts have not definitively indicated what the Board should do when faced with a TDIU claim that was implicitly raised as part of an increased rating claim but was not explicitly adjudicated by the RO. The Board is persuaded by the reasoning of the single judge decision in Muma v. Shinseki, No. 09-2734 (Oct. 21, 2010) that "a remand, not a referral, is the appropriate action when, as here, the Board has jurisdiction over a claim but the evidence has not been developed enough for proper appellate adjudication." See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). As the Veteran may be entitled to a TDIU and such a claim was implicitly made along with the increased rating claim that the Board has decided herein, the RO should explicitly adjudicate this claim after performing any necessary development, to include obtaining a medical opinion as to the effect of the Veteran's service connected PTSD upon his employability. The Board is fully aware that the appellant is employed. However, there was an assertion during the hearing of either a sheltered or protected environment. Accordingly, the claim for a TDIU is REMANDED for the following action: After considering whether any additional development (such as obtaining a medical opinion as to the effect of the Veteran's service-connected PTSD on his employability) is deemed necessary in light of any subsequently obtained evidence, the RO should adjudicate the Veteran's claim for entitlement to a TDIU rating. If the determination remains unfavorable to him, he must be furnished with a Statement of the Case regarding the TDIU, and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2011). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs