Citation Nr: 1310117 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-34 417 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to an initial disability evaluation in excess of 30 percent for the Veteran's posttraumatic stress disorder (PTSD) and an adjustment disorder with mixed anxiety and depressed mood, to include entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and M. V., Ph.D. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran (appellant) had active service from December 1967 to November 1969. The Veteran participated in combat in the Republic of Vietnam and was awarded both the Air Medal and the Bronze Star with the "V" device. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO in Baltimore, Maryland, which established service connection for PTSD; assigned a 30 percent evaluation for that disability; and effectuated the award as of March 31, 2008. In March 2010, the RO recharacterized the Veteran's psychiatric disability as PTSD and an adjustment disorder with mixed anxiety and depressed mood evaluated as 30 percent disabling. In August 2011, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge in Washington, D.C. A hearing transcript was prepared and incorporated into the record. The Board has reviewed both the Veteran's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran was last afforded a VA psychiatric examination for compensation purposes in January 2010. The examination report states that the Veteran "did not meet the criteria for a PTSD diagnosis" and advanced a Global Assessment of Functioning (GAF) score of 55. Since that evaluation, the Veteran's psychiatric disability has apparently increased in severity. A June 2011 VA psychiatric evaluation reports that an assessment of "PTSD/bipolar [not otherwise specified]/adjustment disorder with mixed emotional features" and a GAF score of 36 were advanced. The July 2011 "update of a psychological evaluation" from Dr. V. conveys that the Veteran received ongoing VA psychiatric treatment at the Charlotte Hall, Maryland, VA medical facility. The psychological evaluation conveys that the Veteran was diagnosed with chronic combat related PTSD, major depressive disorder, and polysubstance dependence. The doctor advanced a GAF score of 45-55. Clinical documentation of treatment by Dr. V. and VA treatment after June 2011 is not of record. The June 2011 and July 2011 assessments of the Veteran's psychiatric disability are not consistent with one another. Neither indicates a recent worsening or improvement in symptoms, yet the GAF scores diverge sharply. While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). In light of the apparent increase in severity of the Veteran's psychiatric disability, the Board finds that further VA psychiatric evaluation would be helpful. The Veteran asserts that an initial 100 percent schedular evaluation is warranted for his PTSD given the nature and severity of his service-connected psychiatric disability picture. At the August 2011 hearing before the undersigned Acting Veterans Law Judge, the accredited representative advanced that the record supports the assignment of a TDIU. A request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, 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, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The RO did not develop the TDIU theory of entitlement. Accordingly, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU and afforded an appropriate examination to determine whether it is at least as likely as not (fifty percent or greater) that the Veteran's service-connected psychiatric disability alone, without reference to any non-service-connected disabilities, prevent the Veteran from maintaining substantially gainful employment. The Board observes that the Veteran has been receiving psychiatric treatment from VA intermittently. The records on file reflect treatment only through June 2011. To correctly assess the Veteran's current disability, all records of treatment from June 2011 to the present must be considered. The Veteran has also relocated from Maryland to Florida. Therefore, all relevant VA treatment from both Maryland and Florida VA medical facilities must be obtained for the file. Accordingly, the case is REMANDED for the following action: 1. Issue a Veterans Claims Assistance Act of 2000 (VCAA) notice letter which satisfies the VCAA notice obligations with regard to the issue of entitlement to TDIU. 2. Associate with the record all VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided at the Charlotte Hall, Maryland VA medical facility and any through Florida VA medical facilities. 3. Then schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of his service-connected PTSD and an adjustment disorder with mixed anxiety and depressed mood. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should advance an opinion as to the impact of the Veteran's psychiatric disability upon his vocational pursuits and whether the disability renders him unable to secure and follow any form of substantially gainful employment. All relevant medical records, including those in the claims folder, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that there is complete compliance with the directives of this remand. The examination report should be returned to the examiner if it is deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. The issue of TDIU must be addressed. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ J. B. FREEMAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).