Citation Nr: 1308518 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 05-24 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Deanne L. Bonner, Esq. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran's claim of entitlement to service connection for PTSD, and assigned the same an initial 10 percent disability rating, effective February 28, 2005. By a January 2007 decision of a Decision Review Officer (DRO), the disability rating assigned to the Veteran's PTSD was increased to 30 percent, effective February 28, 2005. As the 30 percent evaluation is less than the maximum available rating, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Board has previously considered this appeal. In a January 2010 decision, the Board denied the Veteran's claim of entitlement to an initial disability rating in excess of 30 percent for the service-connected PTSD. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated March 8, 2012, the Court vacated the Board's January 2010 decision and remanded the case. The case has been returned to the Board for compliance with the directives contained in the March 2012 Memorandum Decision. The Court's March 2012 Memorandum Decision, which has not been subsequently amended, in essence indicated that in denying the Veteran's increased rating claim, the Board failed to explain its finding that there was no evidence of difficulty in establishing and maintaining effective work relationships. Specifically, the Board did not explain its finding in light of lay testimony that the Veteran could not hold a job or get along with employees. It was not clear to what extent the Board's definitive statement of no difficulty with work affected its findings with regard to the assigned disability rating or TDIU. Accordingly, the Court held that remand was warranted. The Board notes that there is a rating decision dated January 2013 associated with the Veteran's Virtual VA claims folder which continued the assignment of a 30 percent disability rating for the Veteran's service-connected PTSD. In continuing the assignment of a 30 percent disability rating, the RO appeared to consider a VA examination for the Veteran's PTSD dated December 2012. A report of this VA examination is not currently associated with the Veteran's claims folder. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate this VA examination report with the Veteran's claims folder. The Board adds that the most recent VA treatment record associated with the Veteran's claims folder is dated December 2008. As it is likely the Veteran has since received VA treatment for his psychiatric disorder, the Board finds that an attempt should also be made to identify and associate records dated from December 2008 with the Veteran's claims folder. The Board also notes that prior to December 2012, the Veteran had not previously been afforded a VA examination for his PTSD since October 2008. Although the Veteran was provided a VA examination in December 2012 for his PTSD, the adequacy of the examination is unclear in evaluation of his claim. Notably, the Veteran's attorney indicated in a statement dated March 2013 that the examination was conducted via telephone. Moreover, the examination did not take into consideration the March 2012 Memorandum Decision from the Court which, as discussed above, directed the Board to determine whether there is evidence of difficulty in establishing and maintaining effective work relationships. As it is unclear whether this criteria among other criteria for evaluation of the Veteran's PTSD was addressed in the December 2012 VA examination, the Board is of the opinion that another VA examination would be probative in ascertaining the current severity of the Veteran's PTSD. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Additionally, the Board observes that the Veteran indicated during a VA psychological examination dated October 2008 that prior to stopping work and collecting Social Security Administration (SSA) benefits, he had trouble getting along with others on the job because of his irritability associated with his PTSD. He also stated that if he were to attempt working, he would experience difficulty concentrating due to the severity of the PTSD. The Board therefore finds that the issue of TDIU has arguably been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The U.S. Court of Appeals for Veterans Claims has held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. Accordingly, the matter should be remanded to the RO for adjudication of the Veteran's claim for TDIU in accordance with the holding in Rice. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a VCAA notice letter which satisfies all VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and any other applicable legal precedent. This notice letter should specifically apprise the Veteran of the evidence and information necessary to substantiate his claim for TDIU, to include requesting a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. The RO should take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for PTSD. After obtaining proper authorization, the RO should obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. 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; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 3. The RO should obtain complete updated VA treatment records dated after December 2008, as well as a copy of the December 2012 VA examination report for the Veteran's PTSD. All attempts to secure this evidence must be documented in the claims folder by the RO. 4. Thereafter, schedule the Veteran for a VA mental disorders examination. The examiner should describe in detail all current manifestations of the Veteran's PTSD. The examiner must comment on the impact of PTSD on the Veteran's occupational functioning. 5. Thereafter, the claims must be readjudicated by the RO. If this readjudication does not result in a complete grant of all benefits sought by the Veteran in connection with these claims, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).