Citation Nr: 1309182 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-10 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from June 1967 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Detroit, Michigan, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a 30 percent evaluation, effective from July 18, 2007. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a February 2013 informal hearing presentation, the Veteran, through his representative, explicitly raised the issue of TDIU entitlement as a free-standing claim for benefits. However, as it is considered part of the current appeal issue, the Board has jurisdiction over the claim. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure review of the totality of the evidence. 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 Remand is required for compliance with due process and VA's duties to notify and assist the Veteran in substantiating his claims. 38 U.S.C.A. §§ 501, 5103, 5103A; 38 C.F.R. §§ 3.103, 3.159. On his March 2010 substantive appeal, the Veteran stated that he desired a hearing before a Veterans Law Judge, to be held via videoconference from the RO. The RO contacted him regarding scheduling and his hearing options, and in reply, the Veteran stated in April 2010 that he no longer wanted a Board hearing. Instead, he wanted a local hearing before a hearing officer at the RO. However, review of the claims file reveals that no action was ever taken to schedule such a hearing. It appears some confusion may have arisen over the Veteran's response to a June 2010 supplemental statement of the case (SSOC); he stated he wished to continue his appeal and waived a 30 day waiting period before certification to the Board. This correspondence did not withdraw his hearing request. Remand is therefore required to schedule the requested local hearing; to ensure the Veteran has an opportunity to fully participate in the adjudication, and given the prior confusion, he should also be asked if he desires a Board hearing regarding the evaluation for PTSD. Remand is also required to provide necessary assistance to the Veteran in substantiating his claims. The Veteran's most recent PTSD examination took place in May 2010, almost three years ago. The examiner at that time noted worsening of the disability since the prior, May 2008 examination, but also indicated the possibility of improvement because the Veteran had stopped abusing alcohol. However, the Veteran most recently has indicated increased employment problems due to service-connected disabilities. Further, no VA treatment records have been associated with the claims file since May 2010. In light of allegations of worsening, and medical indications of potential changes to the severity of PTSD, remand for an updated VA PTSD examination is required, as well as to obtain updated VA treatment records. Remand is also required with regard to the TDIU claim. Not only is the claim inextricably intertwined with the open appeal for increased evaluation for PTSD, the Veteran has alleged involvement of his other service-connected disabilities in his employment problems. As with PTSD, a substantial period of time has passed since the most recent examination or association of VA treatment records. Moreover, the examiners did not clearly address the impact of the disabilities on occupational functioning. On remand, action must be taken to obtain updated, relevant findings. Finally, a claim for TDIU involves consideration of a Veteran's employment history, educational achievement, and vocational attainment. 38 C.F.R. § 4.16(b). To ensure that sufficient information regarding these factors, particularly in light of recent allegations of changes in employment, a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, must be requested on remand, and the Veteran given all necessary notice regarding a claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents regarding his claim of entitlement to TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A properly completed VA Form 21-8940 must be requested from the Veteran. The Veteran is reminded that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A lack of response after a specific request may cause VA to draw a negative inference from his inaction. The Veteran must be informed of his options for a hearing in conjunction with his claim, to include local and Board hearings, and asked to confirm his election of a hearing format. 2. Take appropriate action to schedule the Veteran for the form of hearing requested. If no response is received from the Veteran, he should be afforded a local hearing before an RO hearing officer, as was most recently requested. 3. Associate with the claims file complete VA treatment records from the medical center in Battle Creek, Michigan, and all associated clinics, particularly that in Grand Rapids, as well as any other VA facility identified by Veteran or in the record, for the period of May 2010 to the present. 4. Schedule the Veteran for a VA PTSD review examination. The examiner must describe in detail all current manifestations and symptoms of PTSD. The examiner must specifically discuss the impact of PTSD on the Veteran's occupational functioning, to include his ability to obtain or retain substantially gainful employment. 5. Schedule the Veteran for a VA general medical examination. The examiner must describe in detail all current manifestations and symptoms of the Veteran's service-connected disabilities. The examiner must specifically discuss the impact of service-connected disabilities on the Veteran's occupational functioning, to include his ability to obtain or retain substantially gainful employment. (CONTINUED NEXT PAGE) The service-connected disabilities are: Disability Fragment wounds, abdomen, MG XIX, to include left lower quadrant of abdomen, left suprapubic area, left groin, base of the scrotum, and shell fragment at base of penis, pelvic girdle MG XVI PTSD Scars (4), left abdomen, left suprapubic area, left groin, and left scrotum Fragment wounds, left upper arm, MG V Fragment wounds, left hand with fracture of left fifth metacarpal and proximal phalanx of fifth finger. Fragment wounds, left thigh, MG XIV Ischemic Heart Disease Fragment wounds, right hand Fragment wounds, right thigh Left knee degenerative changes Wound scar, face and neck Scars of the left lower, right lower, left upper, and right upper extremities, and the abdomen Scar with residual shell fragment in the pelvic girdle at the base of the penis 6. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal, to include entitlement to TDIU. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time 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 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). _________________________________________________ BETHANY L. BUCK 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).