Citation Nr: 1301866 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-15 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2012 decision, the Board denied entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD); an initial evaluation in excess of 20 percent for diabetes mellitus, type II; and entitlement to TDIU. The Board granted an earlier effective date for the award of service connection for diabetes mellitus, type II. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, on the basis of a Joint Motion for Partial Remand, the Court vacated the Board's decision with respect to the issue of entitlement to TDIU, and remanded the matter for further consideration. The Court dismissed the appeal as to the remaining issues. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is unable to secure and maintain substantially gainful employment due to his service-connected disabilities. The Veteran was afforded a VA PTSD examination in November 2009. Following the clinical interview and examination, the VA examiner stated that any kind of occupation working with people would be very difficult for the Veteran because of his avoidance of people and crowds. A GAF score of 49 was provided. The examiner did not specifically indicate whether the Veteran is unemployable as a result of PTSD, nor did he discuss the significance of the GAF score as related to the Veteran's employability. As noted in the parties' Joint Motion for Partial Remand, this examination is inadequate because it does not contain sufficient information regarding the Veteran's ability or inability to work. A new examination must be provided. On remand, the RO must contact the Veteran and ask that he identify any additional, pertinent VA and non-VA treatment records that are outstanding; any such records must then be made accessible to the examiner. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and contact information for all private treatment received for the disabilities at issue. Then, obtain copies of all such records not already of record, including any pertinent VA treatment records dated since August 2011. Any negative response must be in writing and associated with the claims file. 2. Schedule the Veteran for a VA examination by an appropriate medical professional to evaluate the impact of his service-connected disabilities, PTSD and diabetes, on his employability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to either service-connected disability and/or both service-connected disabilities in combination, without regard to his age or any nonservice-connected disabilities. The opinion must include discussion of the Veteran's current GAF score, as well as the GAF score of 49 that was recorded at the November 2009 PTSD examination. If the examiner opines that the Veteran's service-connected disabilities do not render him unemployable, the examiner must suggest the type or types of employment in which he would be capable of engaging with his service-connected disabilities, given his current skill set and educational background. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the issue on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ RONALD W. SCHOLZ 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).