Citation Nr: 1307183 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-12 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a higher initial rating for post-traumatic stress disorder, current rated 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL The Veteran and I. P. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from September 1990 to July 2001. He is a Persian Gulf War veteran. He also performed active duty for training and inactive duty training at various times. This appeal arises to the Board of Veterans' Appeals (Board) from a June 2008-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that in pertinent part granted service connection for post-traumatic stress disorder (PTSD) and assigned a 10 percent rating effective December 4, 2006. The Veteran appealed for a higher initial rating. In February 2010, the RO granted a 30 percent rating effective from December 4, 2006. The Veteran has continued his appeal for a higher initial PTSD rating. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that he cannot work because of PTSD. Therefore, the Board has added a TDIU claim to page 1. Further development is needed to properly adjudicate the TDIU claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion where such is necessary to make a decision on the claim. See 38 U.S.C. § 5103 (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In December 2009, the Veteran testified before an RO hearing officer to the effect that PTSD symptoms compelled him to retire from his civilian job and from his Army National Guard post. He testified that PTSD prevented him from completing a 30-year career for a Reserve retirement. This testimony raises the following questions: (1) the question of unemployability due to PTSD; (2) the question of whether PTSD could cause total occupational and or social impairment; and, (3) the question of increasing severity of PTSD since the May 2008 VA PTSD compensation examination. According to 38 C.F.R. § 3.327(a), re-examinations will be required where the evidence indicates that there has been a material change in the disability. See also VAOPGCPREC 11-95 (an examination which was adequate for purposes of determination of the claim by the agency of original jurisdiction will ordinarily be adequate for purposes of the Board's determination, except to the extent that the claimant asserts that the disability in question has undergone an increase in severity since the time of the examination). See 60 Fed. Reg. 43186 (1995). The Veteran testified at the December 2009 hearing that he receives twice-monthly PTSD treatment from a VA facility in "Jackson" or in "Michigan Center" (see hearing transcript, p. 3) [no VA facility is listed at either location]. These treatment records have not been associated with the claims file. Attempts must be made to obtain this evidence as well as any other pertinent outstanding VA medical records. While this matter is on remand, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims being remanded that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. The RO should assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. Regardless of the Veteran's response, obtain all outstanding VA medical records. 3. Following the above, the AMC should arrange for a psychiatric examination to determine the severity of PTSD. The claims files should be made available to the physician for review. The physician is asked to review the claims files, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine him, and offer a diagnosis or diagnoses, if appropriate. The physician is then asked to address two questions: I. The physician is asked to address whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's PTSD, or other current psychiatric diagnosis, has caused total occupational and/or social impairment. II. The physician is asked to address whether it is at least as likely as not that all service-connected disabilities would preclude securing and following substantially gainful employment (at this writing, service connection is in effect for chronic obstructive pulmonary disease and PTSD). The physician should offer a rationale for any conclusion in a legible report. 4. Following the above development, the AMC should re-adjudicate the initial PTSD disability rating. Following that, the AMC should adjudicate the TDIU claim. 5. Following the above, if the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ G. A. Wasik 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 Court. 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).