Citation Nr: 1303244 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-50 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for PTSD and assigned a 50 percent rating effective January 15, 2008. In a June 2002 rating decision, the RO denied service connection for degenerative joint disease of the lumbar spine. The Veteran filed a notice of disagreement and he received a statement of the case in March 2003. However, he did not file a substantive appeal. Hence, the issue was not certified to the Board and will not be addressed in this decision. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2012. A transcript of the proceeding is attached in his Virtual VA record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND At his November 2012 videoconference hearing before the undersigned Veterans Law Judge, the Veteran and his friend testified that the Veteran's PTSD had significantly worsened since his October 2011 VA examination and detailed specific symptoms that had caused increased disability, including panic attacks and avoidance of people. In light of these assertions, the Board finds that additional development is warranted to determine the current severity and manifestations of the Veteran's service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). VA is required to afford the Veteran a contemporaneous VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer, 10 Vet. App. at 403; see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Additionally, in his substantive appeal as well as at his videoconference hearing, the Veteran raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability. The United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating based on individual unemployability due to service-connected disability is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to a total disability rating based on individual unemployability due to service-connected disability is based has already been found to be service connected, as part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. Since the Veteran and his representative have alleged that the Veteran's PTSD disability prevents him from working, the Board finds that the claim for entitlement to a total disability rating based on individual unemployability due to service-connected disability must be addressed by the RO in the first instance. Ongoing VA medical records and any additional evidence to support the claims should be also obtained, including complete Vet Center records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran is advised that failure to report for a VA examination without good cause, may have adverse consequences on his claims. See 38 C.F.R. § 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a letter satisfying VA's duties under the Veterans Claims Assistance Act (VCAA) to notify and assist him in substantiating the total disability rating based on individual unemployability due to service-connected disability claim. Afford the Veteran an appropriate period in which to respond to the VCAA notice. 2. Contact the Veteran and request that he provide, or identify, any relevant personnel records from any previous employers as to the reasons for his termination(s). Any authorization necessary to obtain such records should be obtained from the Veteran. Afford the Veteran an appropriate period in which to provide any relevant personnel records. 3. Obtain the names and addresses of all medical care providers who treated the Veteran for his service-connected PTSD since October 2008. After securing the necessary release(s), the RO should obtain any outstanding records. Duplicate records should not be placed in the file. 4. After the above has been accomplished, schedule the Veteran for a VA mental examination to ascertain the current severity his service-connected PTSD. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should examine the Veteran, review the Veteran's claims folder and provide all necessary clinical factors required in an examination worksheet. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record, a full work and educational history. Based on a review of the case, the examiner must opine as to whether, without regard to the Veteran's age or the impact of any non service-connected disabilities, it is at least as likely as not that his service-connected PTSD alone renders him unable to secure or follow a substantially gainful occupation. The examiner should reconcile any opinion with the medical evidence of record and the Veteran's contentions. If the examiner opines that the Veteran's service-connected disability does not render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging in given his current skill set and educational background. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Then, readjudicate the claim for a higher initial rating for PTSD and adjudicate the Veteran's claim for entitlement to a total disability rating based on individual unemployability due to service-connected disability. If the benefit sought is denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ FRANK J. FLOWERS 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).