Citation Nr: 1307366 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 08-04 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating greater than 30 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A total disability rating based on individual unemployability (TDIU) is part of increased rating claims where the Veteran claims his disability causes unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). During his hearing before the Board in December 2012, the Veteran testified that his posttraumatic stress disorder (PTSD) affected his employment throughout his life and was a major factor in his decision to retire from his last job in 2012. The Veteran also submitted statements from his former employer and former teacher noting panic attacks, which would impact his performance. As the issue of TDIU is "part and parcel" of a claim for an increased rating, the issue of entitlement to a TDIU is before the Board. Id. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims his PTSD is worse than currently rated, manifested by suicidal ideation, nightmares, intrusive memories, social isolation, and occupational impairment. In fact, he testified during his hearing before the Board in 2012 that he retired four months prior to avoid being fired. He indicated his inability to concentrate, anxiety, and other PTSD related symptoms interfered with his work. He felt he may eventually hurt someone, so he retired from employment altogether. PTSD For increased rating claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination in December 2006, over six years ago. Since that time, it is clear the Veteran has been seeking ongoing treatment every month at the VA. He further testified to recently retiring from his job due to increased PTSD symptoms. In light of the over six year gap in time, the Board concludes a new VA examination is necessary. The claims folder contains VA outpatient treatment records up to May 2012. The Veteran indicates he seeks treatment on a monthly basis. The VA must make efforts to obtain any missing VA outpatient treatment records. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (service records are considered part of the record on appeal since they are within VA's constructive possession) TDIU As noted in the introduction, the Veteran claims his PTSD causes unemployability and, in fact, was a major factor in his decision to retire from his job in 2012. During his hearing before the Board, he indicated never having a "steady" job, jumping from one job to another. He felt he would eventually be fired or hurt someone at his last job at the feed mill because of his lack of concentration, so he retired in 2012. The Veteran also submitted statements from his former employer and former teacher noting panic attacks, which would impact his performance. As such, a claim of TDIU is raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for TDIU is "inextricably intertwined" with the other claim being remanded here. Harris v. Derwinski, 1 Vet. App. 181 (1991). The issue must be adjudicated only after full development and adjudication of the Veteran's increased rating claim. In a claim for TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). Additionally, the Veteran should be provided with an updated notice letter for the issue on remand. Accordingly, the case is remanded for the following action: 1. The RO must provide the Veteran appropriate notice regarding the issue of TDIU on appeal. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must request all treatment records from the VA Medical Center in Asheville, North Carolina since May 2012. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. After completion of paragraphs 1 and 2, and all requested records are obtained to the extent available, the Veteran must be afforded an appropriate psychiatric VA examination to assess the current severity of his 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 psychiatric 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 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. 4. Thereafter, the Veteran must 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 of PTSD, hearing loss, herpes simplex disciform keratitis, and tinnitus, render him unable to secure or follow a substantially gainful occupation 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 a 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 prepared must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. 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 an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated, including the issue of entitlement to a TDIU. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).