Citation Nr: 1308615 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-41 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating for compensation purposes based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to February 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Following the issuance of the statement of the case in August 2010, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). In September 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In the hearing, the Veteran and his service representative reported the Veteran now suffers from prostate cancer and advised the Board that the Veteran would file a claim for service connection for prostate cancer, to include as due to herbicide (Agent Orange) exposure. The Veteran served in Vietnam from April 1971 to February 1972. The issue of service connection for prostate cancer has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the question currently before the Board was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating assignment, the Board has characterized the rating issue on appeal as a claim for higher initial evaluation of an original award. Analysis of this issue therefore requires consideration of the rating to be assigned effective from the date of award of service connection for the claim. 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 Board has determined that a remand is necessary to determine the current level of severity of the Veteran's service connected PTSD. At his hearing, the Veteran and his service representative considered withdrawing his appeal because they were of the opinion that the evidence at the time of the rating decision did not warrant a higher rating, but his condition had worsened since that time. As noted above, the United States Court of Appeals for Veterans Claims (Court) has directed that the Board to analyze and determine the Veteran's appeal based upon the Veteran's dissatisfaction with an initial rating assigned following a grant of service connection. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Court also acknowledged that once disagreement to the initial rating is expressed, the claim remains in controversy. Id. The Court directed that the Board must consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. at 126-27. Stated another way, the Board will consider whether a rating higher than 50 percent is appropriate at any time since the date the Veteran filed his claim. This includes a date either before or after the October 2009 rating decision, which was based upon a VA examination in September 2009. Thus, even if the evidence does not support a rating higher than 50 percent for the period from April 2009 to October 2009, his entitlement to a higher rating from any date after that time is already at issue and before the Board. The Board has determined that the Veteran has presented evidence that his PTSD symptoms were worse than stated at the September 2009 VA examination and that his symptoms or have worsened since that time. In his notice of disagreement, the Veteran stated the examination is not an accurate report of his PTSD inasmuch as he was embarrassed to report and did not report the existence and extent of symptoms such as panic attacks, flashbacks, and nightmares. He also has submitted evidence that the level of severity of his symptoms has worsened through the evidence of a statement of a friend, M. W., who indicated that the Veteran's PTSD has left him incapable of making decisions such as what course of treatment he should pursue to treat his recently diagnosed prostate cancer. As the Veteran indicated his existing PTSD symptoms have worsened, a new VA psychiatric examination to ascertain the current severity of PTSD is warranted. 38 U.S.C.A. § 5103A. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Therefore, on remand, the RO should obtain update VAMC treatment records from August 2010 to the present. As to the claim for total disability based upon individual unemployability, the Veteran argued he was unemployable in his notice of disagreement, filed in February 2010, and expressly raised the claim at his hearing in September 2011. The Board notes that such a claim would already be part of his claim for a higher rating for PTSD if, as he did in this instance, raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (a request for a total disability rating for compensation based on individual unemployability raised by the Veteran is not a separate claim for benefits, but part of the claim for increase). Instead, as the Court held, a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Since this matter must be remanded to determine the current level of severity of his PTSD disability, which the Veteran has claimed affects his employability, the Board finds that the Veteran's claim for entitlement to TDIU is inextricably intertwined with the other issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the issue of entitlement to TDIU must also be remanded. Nevertheless, the Board has determined that further development is needed for the TDIU issue but lacks the appropriate development, including notice and assistance under the VCAA. The Board has determined that the Veteran should be provided the opportunity to provide an updated employment status, including evidence where the Veteran lost employment due to his PTSD disability. In addition, the Board has determined that the VA examiner for the PTSD VA examination should also determine whether, after the foregoing development, his service-connected PTSD, but not in conjunction with any of his nonservice-connected disabilities or age, makes him unemployable for VA purposes. Accordingly, the case is REMANDED for the following action: 1. Provide VCAA notice to the Veteran on the claim of entitlement to a total disability rating for compensation purposes based upon individual unemployability, and assist the Veteran with respect to developing evidence to substantiate the claim for TDIU. 2. Contact the Veteran and ask him to provide information on his current employment status. If he is currently not employed, the Veteran should be asked to provide an authorization from his prior employer concerning the reasons the employment relationship ended and any additional development deemed necessary to adjudicate the issue of entitlement to a total rating based on individual unemployability due to service-connected disability should be undertaken. All efforts to obtain records must be documented. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Obtain all records from the VA medical centers in Brecksville, Ohio and Lorain and associated outpatient clinics from August 2010 to the present. 4. After the foregoing record development is completed, provide the Veteran a VA psychiatric examination to determine the current nature and severity of the Veteran's service-connected PTSD and the Veteran's ability to obtain and maintain gainful employment solely on the basis of his service-connected disability. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. A complete rationale for all opinions must be provided. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his PTSD, including the frequency, duration, intensity, onset of any change in symptoms, and functional effects of symptoms such as, but not limited to, panic attacks. The examiner should specifically include a GAF score due solely to the PTSD. All signs and symptoms of the Veteran's PTSD should be reported in detail, and the examiner should describe the impact of the Veteran's PTSD on his occupational and social functioning. The examiner is also asked to assess the Veteran's ability to obtain and maintain gainful employment solely on the basis of PTSD (and any other service-connected disabilities if applicable) and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disability prevents him from engaging in substantially gainful employment consistent with his education and occupational experience. When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities. If, however, after a review of the record, an opinion on employability is not possible without resort to speculation, the VA examiner is asked to clarify whether an opinion on employability is beyond what may be reasonably concluded based on the evidence of record, considering current medical knowledge. Any additional development deemed necessary in order to provide the requested opinion should be obtained. 5. After the development requested is completed, adjudicate the claim for a higher initial evaluation for PTSD, and entitlement to total disability rating based upon individual unemployability due to service-connected disability. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). 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). _________________________________________________ U. R. POWELL 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).