Citation Nr: 1304833 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-36 737 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to January 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO in New York, New York, currently has jurisdiction of the claims. In a December 2012 brief, the Veteran's representative raised the issue of the Veteran's unemployability. Since entitlement to a TDIU is an element of a claim for increased rating, that issue has been included as listed on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 claim for a rating in excess of 50 percent for PTSD was certified to the Board in November 2009. The Veteran's representative did not submit a brief until December 2012. At the time the claim was certified, only one year had passed since the Veteran's June 2008 VA examination. Now that examination is over four years old. Additionally, in March 2011, the Veteran indicated that his PTSD was getting worse. When a Veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The claim for an increased rating for PTSD must be remanded for a more contemporaneous VA examination. Recent VA treatment records should also be obtained in light of the remand as it appears that the Veteran receives regular treatment from the VA Medical Center (VAMC) in Albany, New York. Regarding the issue of entitlement to a TDIU, on remand, the Veteran should be sent a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012), and schedule an appropriate VA examination. As the claims are being remanded for the foregoing reasons, any temporary folder that has been created should be associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Associate any temporary folder with the claims file. 2. Send a new notice letter to the Veteran and his representative. The letter should notify the Veteran of the information and evidence necessary to substantiate the claim for TDIU. The letter should contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. The Veteran and his representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 3. Obtain the Veteran's treatment records from the Albany VAMC, dated since August 2009. 4. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected PTSD. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner must comment upon the presence or absence, frequency, and severity of the Veteran's PTSD symptoms to include: affect; speech; panic attacks; ability to understand complex commands; short- and long-term memory; judgment; abstract thinking; motivation; mood; ability to establishing and maintaining effective work and social relationships; suicidal and/or homicidal ideations; obsessional rituals; ability to function independently, appropriately, or effectively; impulse control; neglect of personal appearance and hygiene; ability to adapt to stressful circumstances; delusions or hallucinations; general behavior; persistent danger of hurting self or others; ability to perform activities of daily living; and orientation. The extent of occupational and social impairment must be addressed. The examiner must also enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. The report prepared must be typed. 5. The Veteran must also be afforded an appropriate VA examination to determine to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. (The Veteran is currently service connected for PTSD and infectious hepatitis.) 6. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO must implement corrective procedures at once. 8. Finally, readjudicate the claims on appeal, including the issue of entitlement to a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).