Citation Nr: 1309967 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 11-02 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1969. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2006 rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans' Affairs (VA). In October 2012, a Board hearing was held in San Antonio before the undersigned Veteran's Law Judge; a transcript of the hearing is of record. As will be discussed below, the evidence including the Veteran's testimony, raises the matter of entitlement to a TDIU as part and parcel of the Veteran's appeal for a higher rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted at the same time that the 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). Consequently, as listed above, a claim for a TDIU is also on appeal. 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 Pursuant to 38 C.F.R. § 3.327(a), examinations will be requested whenever VA determines that there is a need to determine the exact nature, or severity, of a disability. VA has the authority to schedule a compensation and pension examination when deemed necessary and the Veteran has an obligation to report for that examination. The Veteran was last afforded a VA examination for his service-connected PTSD in April 2010, and contends that his disability has worsened since that examination. VA treatment records show that the Veteran was hospitalized in late March 2012 for depression with suicidal ideation and some apparent thoughts of hurting others. Following the hospitalization, he completed a two week intensive outpatient PTSD program. Thus, these records also tend to suggest that the PTSD may have increased in severity. Consequently, another VA examination is warranted prior to final adjudication of this claim. 38 C.F.R. § 3.327(a). Prior to arranging for the examination, the RO/AMC should obtain updated VA records of treatment or evaluation for PTSD. The Veteran has testified that he last worked in March 2003 as an auditor but had to leave that job because of difficulty with responding to authority and he was afraid that he was going to do serious bodily harm to his manager. As his anger has been associated with his service-connected PTSD, the Board construes this assertion as a claim for a TDIU. Rice, 22 Vet. App. at 447. The claims file does not reflect that the RO/AMC has taken action on this claim. Such action must be taken on remand, including providing the Veteran with appropriate VCAA notice, obtaining any outstanding records pertinent to this claim and ensuring that any necessary medical opinions are obtained relating to the effect the Veteran's service-connected disabilities (i.e. PTSD, diabetes, peripheral neuropathy of the lower extremities, hearing loss and erectile dysfunction) have on his employability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VCAA notice letter pertaining to the issue of entitlement to a TDIU, in accordance with the controlling regulations and case law, and any other applicable legal precedent. The Veteran must be apprised of what the evidence must show to support a claim for a TDIU, and the division of responsibility between him and VA in obtaining such evidence. The Veteran must also be provided an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). -Specifically request the Veteran whether he is receiving benefits from the Social Security Administration based on disability from any or all of the service-connected disorders. If so, obtain those Social Security Administration records. 2. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for psychiatric disability, diabetes, peripheral neuropathy, bilateral hearing loss and erectile dysfunction from 2003 to the present. * After obtaining any appropriate authorizations for release of medical information, the RO/AMC must seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. In particular, the RO/AMC should be sure to obtain records of VA treatment and evaluation of PTSD from October 2009 to March 2012 and from June 2012 to the present. * The Veteran must be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 3. Seek to obtain from the Veteran a history as to his education, training and occupational experience. 4. After completing the above, schedule the Veteran for a mental disorders examination at an appropriate location to determine the current severity of his service-connected PTSD and to determine whether he is unemployable due to his service-connected disabilities. The examination should be conducted by a psychiatrist or psychologist other than the psychologist who performed the April 2010 VA examination. The following considerations will govern the examination: a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. The examination report must reflect review of pertinent material in the claims file. The examiner must complete an independent review of the claims file, but the Board draws the examiner's attention to the following: i. The VA mental health treatment records, including records of a March 2012 brief hospitalization followed by April 2012 intensive outpatient treatment. ii. A September 2005 VA PTSD evaluation report. iii. A July 2008 VA PTSD consultation report. iv. The April 2010 VA psychological evaluation report. v. The contentions of the Veteran, including his testimony at the October 2012 Board hearing. vi. Any pertinent records added to the claims file as a result of this remand. b. After REVIEWING THE CLAIMS FILE and conducting an interview with, and an examination of, the Veteran, the examiner must provide current findings as to the severity of his PTSD to include effects on employment. The examiner must address the Veteran's contention that his psychiatric disability is more severe than as reflected by the current 30 percent rating. * The examiner must also provide an opinion as to whether the Veteran is unable to secure or maintain substantially gainful employment by reason of the COMBINED EFFECTS of his service-connected disabilities (i.e. PTSD, diabetes, peripheral neuropathy, hearing loss and erectile dysfunction). ("Substantially gainful employment" means employment sufficient to obtain a living wage.) The examiner may take into account the Veteran's prior education and work experience but may not take into account the Veteran's advanced age or the effect of any non-service connected disabilities. * If an examiner finds that consultation with another specialist is required to determine whether the Veteran is unemployable by reason of the COMBINED EFFECTS of his service-connected disabilities (if, for example, the psychiatric examiner needs to consult with an internist), such consultation must be achieved. * If the examiner determines that an additional VA examination of the Veteran is required to answer any question posed by the Board, such an examination must be scheduled. c. The examiner must identify and explain the medical basis or bases for all conclusions, with identification of the pertinent evidence of record. d. All clinical findings must be reported in detail and correlated to a specific diagnosis. 5. Adjudicate the issue of entitlement to a TDIU and readjudicate the issue of entitlement to a rating in excess of 30 percent for PTSD. If any benefit sought remains denied, provide the Veteran a SUPPLEMENTAL STATEMENT OF THE CASE and an appropriate period of time for response. The Board is assuming full appellate jurisdiction over the claim for a TDIU as part and parcel of the claim for an increased rating for PTSD. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ Vito A. Clementi 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).