Citation Nr: 1303285 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-15 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a higher disability rating for posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to a total rating based on individual unempoyability due to service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had several periods of active duty between September 1980 and August 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Houston, Texas Department of Veterans Affairs Regional Office (RO), which increased the Veteran's initial disability rating for PTSD to 50 percent. A notice of disagreement was submitted in June 2010, a statement of the case was issued in May 2012, and a substantive appeal was submitted in June 2012. 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 The Veteran is seeking a rating in excess of 50 percent for his service-connected PTSD. He was afforded a VA psychiatric examination in April 2010. He later submitted current treatment records and social security administration (SSA) records. In a SSA record received by the Board, the Veteran contends that his PTSD symptoms have increased in severity since March 2011. He stated that he has become more irritable, angry, isolated, has no desire to make friends, has severe insomnia, is hypervigilant, paranoid, and distrustful of others. He also reported that he now has psychotic features, including hearing voices and seeking shadow movement at night. The Veteran stated that these symptoms have severely impacted his ability to care for his personal needs and his ability to work, explaining that he has to be encouraged to perform. A SSA decision, dated April 2012, found that the Veteran's PTSD (and other claimed impairments) which rendered him completely disabled since January 2011. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the SSA records and decision suggesting an increase in the severity of symptoms, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's PTSD. Finally, the Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), in which the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. In the present case, the Veteran made a claim for increased compensation based on unemployability in July 2011. This claim has not yet been adjudicated by the RO. Thus, the RO should take into account the recent evidence, as well as the statements from the Veteran, suggesting that he is unemployed due to his PTSD. As the TDIU issue is to be considered part of the claim for an increased rating, the Board believes the proper action is to remand the issue to the RO. Accordingly, the case is REMANDED for the following actions: 1. The RO should take appropriate action to obtain and associate with the claims file any pertinent outstanding VA and private medical records to the claims on appeal. 2. After obtaining the above evidence, to the extent available, the Veteran should be scheduled for an appropriate VA examination to determine the current severity of his PTSD. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. Examination findings should be reported to allow for evaluation of PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411. A GAF score should be reported. The examiner should offer an opinion as to whether the Veteran's PTSD precludes substantially gainful employment. 3. After completion of the above and any further development deemed necessary by the RO, the RO should then take appropriate action to develop and adjudicate the TDIU issue, and should review the record and determine whether an increased rating for PTSD is warranted. If either issue is denied, then the Veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order, for appellate review. 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 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). _________________________________________________ ALAN S. PEEVY 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).