Citation Nr: 1305301 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 08-08 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Chisholm Chisholm & Kilpatrick, LTD WITNESSES AT HEARING ON APPEAL Veteran & Son ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1942 to July 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2006, the RO increased the rating assigned for PTSD from 30 percent to 50 percent disabling, effective June 21, 2006. A December 2007 rating decision continued the 50 percent rating. At a June 2009 Travel Board hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. In July 2009, the Board remanded the issue of increased rating for PTSD to the RO for further development. A new VA examination was provided in November 2009. In an April 2010 decision, the Board increased the rating assigned for PTSD to 70 percent disabling, effective June 21, 2006. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2010, pursuant to Court Order and the reasons for remand set forth in the Joint Motion for Remand, the Court set aside the April 2010 decision finding that the Board failed to provide an adequate statement of reasons or bases for its determination that a rating in excess of 70 percent was not warranted. In February 2011, the Veteran submitted a vocation assessment from a vocational consultant, EJC, that was accompanied by a signed wavier of RO review. See 38 C.F.R. § 20.1304(c) (2012). In a March 2011 decision, the Board denied a rating in excess of 70 percent for PTSD, finding that the criteria for a 100 percent schedular rating are not met or approximated. At this time, the Board referred the issue of TDIU to the Agency of Original Jurisdiction. A June 2011 rating decision, in pertinent part, denied the claim for TDIU. In July 2011, a notice of disagreement was received, and a substantive appeal was received in June 2012. However, the Board acknowledges that the matter of TDIU is not a freestanding claim, but is part of the claim for an increased rating for PTSD. See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Thus, the Board retained jurisdiction over the TDIU claim (submitted in June 2009) when the Board had acquired jurisdiction over the claim for an increased rating. In November 2011, the Veteran appealed the March 2011 Board decision to the Court. In a July 2012 Memorandum Decision, the Court set aside, in part, the Board's March 2011 decision and remanded for readjudication and further development the matter of the appropriate disability rating for the Veteran's service-connected PTSD. The Court also set aside the portion of the March 2011 decision that refers the matter of TDIU to the RO and instructed the Board to adjudicate the TDIU matter or remand it to the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Pursuant to the Court's issuance of a Board remand on the matter of increased rating for PTSD, the Board remands this matter to the RO for further development and readjudication. The Board also notes that a decision on the claim for an increased evaluation could change the outcome of the Veteran's claim for TDIU. As such, the claims are inextricably intertwined. For this reason, the issue of entitlement to an increased rating for PTSD must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the RO to adjudicate the inextricably intertwined issue. In its July 2012 Memorandum Decision, the Court concluded that the Veteran was prejudiced by the Board's failure to ensure that its July 2009 remand instructions were satisfied. Thus, the Board must remand the PTSD claim on appeal for compliance with its July 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board's remand in July 2009, the RO was instructed to obtain private treatment records from Dr. Einstein, which was frustrated by the fact that the Veteran did not provide a release authorization form. Yet, the RO administered a new VA examination in light of the second remand directive. Once VA determines that a medical examination is necessary, it is required to ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Court found that the November 2009 VA examination was inadequate because it failed to describe the extent to which the Veteran's PTSD resulted in social and occupational impairment. The VA examiner's mere assignment of a Global Assessment of Functioning (GAF) score was found to be insufficient by the Court to stand as an assessment of the Veteran's social and occupational impairment due to PTSD. Furthermore, the Court noted that the February 2011 vocational assessment, which was considered by the Board at the time of its March 2011 decision, did not provide an opinion regarding the impact of the Veteran's PTSD on his social impairment (although there was an opinion as to his occupational impairment). The Court found that consequently, the record does not contain a medical opinion discussing the impact of the Veteran's PTSD on his social impairment dated after the Board's July 2009 decision, and such evidence is central to the determination of a higher disability rating. For these reasons, a new VA examination must be ordered to evaluate the nature and severity of the Veteran's current PTSD and to evaluate both the social and occupational impairment factors that are critical in a higher rating evaluation. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Prior to issuing a new VA examination, the Board finds that the RO should attempt to obtain any and all VA and/or private medical records that are relevant to the PTSD and TDIU claims. In this case, it appears that there may be outstanding records that are relevant to the claims on appeal. At the most recent VA examination in August 2011, the Veteran indicated that he attends Brick VA Healthcare System and he was currently seeing a private physician as well. The May 2011 VA PTSD Disability Benefits Questionnaire (DBQ) indicated that the Veteran continues to be seen by Dr. Schroeder for ongoing psychological maintenance. The RO should attempt to obtain such relevant records as VA has a duty to endeavor to obtain all relevant private records identified by the Veteran. See 38 C.F.R. § 3.159(c). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records. 38 C.F.R. § 3.159(c). Therefore, the RO should obtain and associate with the claims file any outstanding VA treatment records pertinent to the issues on appeal. The foregoing additional development is required prior to final Board adjudication of the TDIU claim on appeal. After obtaining any and all relevant evidence, the Board must remand for an evaluation as to whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The Board notes that the Veteran was afforded a VA examination in August 2011 to evaluate for unemployability, which reportedly considered all of his service-connected disabilities. The examiner concluded that due to non-service connected conditions, the Veteran is unemployable. However, the examiner deferred to the psychiatric evaluation (July 2011) for his employability opinion regarding the service-connected PTSD. On remand, the Board finds that an appropriate VA examiner or vocational rehabilitation specialist should opine as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of the Veteran's PTSD and also address the combined effect of his service-connected disabilities on his ability to work. Finally, the readjudication of the claim on appeal should include consideration of all evidence added to the record since the last adjudication of the claim in March 2011. Further, VA should also document consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, consistent with the facts found) pursuant to decisions in Fenderson v. West, 12 Vet. App. 119 (1999), and Hart v. Mansfield, 21 Vet. App. 505 (2007), or referral for an extraschedular rating for the Veteran's PTSD is warranted. VA should also document consideration for an extraschedular TDIU prior to June 21, 2006 pursuant to 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his PTSD. After acquiring this information and obtaining any necessary authorization, obtain and associate these records with the claims file. A specific request should be made for authorization to obtain records from Dr. Einstein dated after October 8, 2008 (pursuant to July 2009 remand directive) and Dr. Schroeder. If any of the records requested are unavailable, clearly document the claims file to that effect. 2. Obtain and associate with the claims file any VA medical outstanding records, to include any records documenting PTSD treatment from Brick VA Healthcare System. 3. After the development outlined in items (1) and (2) is completed, schedule the Veteran for an examination to determine the current nature and severity of his service-connected PTSD. The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Additionally, the examiner should specifically consider the following evidence in connection with formulating a medical opinion: *The February 9, 2011 Vocational Assessment by Vocational Consultant EJC. *The May 2011 DBQ Review by Dr. B.O. *The July 2011 DBQ by Dr. B.O. *The August 2011 VA examination for unemployability by Dr. P.R. *Any and all lay statements made by the Veteran in connection with his claims. All tests deemed necessary by the examiner must be performed, and all findings set forth in detail. It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected PTSD. The findings of the examiner shall address the degree and extent of social and occupational impairment attributable to the Veteran's PTSD, to include providing an opinion as to whether he is considered to be totally socially and occupationally impaired due to PTSD. The examiner shall assign a GAF score and explain the basis for this finding. Specifically comment on the impact of the Veteran's current PTSD on his social impairment. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's PTSD, if any, on his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. A report of the examination should be prepared and associated with the Veteran's VA claims folder. 4. After the development outlined in items (1) through (3) is completed, obtain an opinion from a vocational rehabilitation specialist or appropriate VA physician to assess the impact of his service-connected disabilities on his ability to obtain and maintain employment. The specialist must review the record in its entirety and must comment on the effect of each of the Veteran's service-connected disabilities on his ability to work (disregarding the effects of any disabilities that are not service-connected), indicating what functions/types of employment would be inconsistent with/precluded by each disability, and what types of employment, if any, would remain feasible despite the service-connected disabilities. The specialist should set forth all findings, together with the complete rationale for the comments and opinions expressed, in a printed report. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the PTSD and TDIU claims, in light of all pertinent evidence and legal authority. VA should document its consideration of whether: (1) "staged rating," pursuant to Fenderson, cited to above; (2) referral for an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b); and (3) referral for an extraschedular TDIU under 38 C.F.R. § 4.16(b) are warranted. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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. 2012). _________________________________________________ CHERYL L. MASON 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).