Citation Nr: 1311148 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-40 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent disabling for post traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to February 1970 with 1 year 2 months and 24 days of prior service. This matter comes before the Board from a November 2008 rating decision that granted service connection for PTSD and assigned an initial 50 percent rating. The Board notes that the Veteran has alleged that his PTSD has rendered him unemployable, thus raising an inferred claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus the Board has included this issue in the issues section of this determination. The Veteran has testified before the undersigned VLJ at a hearing held in March 2011. A transcript of this hearing is associated with the claims file. Review of the electronic record discloses no evidence pertinent to this matter. 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 Veteran contends his PTSD is more severe than currently evaluated. He has testified at his November 2011 hearing that his PTSD symptoms render him unemployable. Additionally, medical records dated in September 2010 and March 2011 contain opinions from the treating medical personnel describing his PTSD symptoms as severe, and resulting in unemployability. Thus he has alleged that this condition has worsened since his last VA examination, which was done in June 2010, assigned a GAF score of 50 and determined that he was not unemployable. His GAF scores since this examination are shown to be 45 and 50 in the records that now describe him as unemployable. Thus a new examination is indicated. VA's statutory duty to assist the appellant includes providing additional VA examination by a specialist when indicated, and conducting a thorough and contemporaneous medical examination, and providing a medical opinion, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In Rice v. Shinseki, 22 Vet. App. 447 (2009, the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence which suggests that the Veteran is unemployable due to PTSD now reasonably raise this TDIU claim. Therefore, further development is warranted to ascertain whether the Veteran's symptoms attributable to the service-connected PTSD disorder more nearly approximate the criteria for a total rating based on unemployability. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service- connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2009); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). Currently the evidence is somewhat in conflict as to whether the Veteran is truly unemployable due to his PTSD , as shown in the opinion from the June 2010 VA examination and the VA treatment records from a few months after this examination that describe him as unemployable. The Veteran himself described that he was able to do some work part time, but received only $250 every two weeks. In light of the above, the Board finds that a current VA examination is in order to ascertain whether the Veteran is unemployable due to his service-connected disabilities. Additionally, the Veteran has cited to the existence of potentially pertinent medical evidence as he has testified to receiving railroad retirement benefits. Although he indicated that he received this retirement due to knee problems rather than PTSD, such records could contain evidence pertinent to these matters on appeal, particularly in light of the inferred TDIU claim. He has also described receiving continued treatment including psychiatric treatment at the VA Medical Center in Phoenix, Arizona. The most recent treatment records are dated in March 2011. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus VA records after March 2011 should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's pertinent medical records associated with Veteran's disability retirement from his railroad employer. Additionally the RO should obtain medical records from the VA Medical Center in Phoenix, Arizona after March 2011 that pertain to his PTSD and TDIU claims. The Veteran should provide all necessary written releases for these records. If any of the identified records cannot be obtained, the RO should notify the Veteran of the efforts made. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Thereafter, following the completion of the above, the RO should schedule the veteran for a VA psychiatric examination to determine the current level of severity of his PTSD. The claims folder must be made available to the examiner for review before the examination and the report should so indicate such review. Detailed clinical findings should be reported in connection with the evaluation. The examiner should report a full multiaxial diagnosis, to include the assignment of a global assessment of functioning (GAF) score consistent with the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) and an explanation what the assigned score represents. In addition, the examiner should state an opinion as to the degree of social and industrial inadaptability and employability caused by the veteran's service-connected PTSD. If other psychiatric disorders are shown besides PTSD, the examiner should provide a diagnosis and state an opinion as to the degree of social and industrial inadaptability and employability caused by these other disorders. If the examiner is unable to separate any symptomatology of the service-connected PTSD from any non-service connected psychiatric disorder which may be diagnosed, the examiner should so state. The examiner should address whether or not the veteran's service-connected PTSD prevents him from securing or following substantially gainful employment, considering the impairment associated with that disorder. If so, the examiner should identify the period of time in which he became unemployable due to PTSD. The examiner must report the basis for the determination that the veteran cannot work. Each opinion should contain comprehensive rationale based on sound medical principles and facts. 3. Following completion of the above development, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received and fully sets forth the controlling law and regulations pertinent to the issue on appeal. It must contain notice of all relevant actions taken on the claims for benefits. An appropriate period of time should be allowed for response. 4. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to cooperate by reporting for examination without good cause may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2012). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. 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). _________________________________________________ THOMAS J. DANNAHER 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).