Citation Nr: 1311567 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-48 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: J. Michael Woods, Esquire ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1999 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In characterizing the matter on appeal, the Board notes that a TDIU is part of an increased disability rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, 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. Id. The Veteran alleged in a March 2010 VA examination that he was unable to work for about one year due to his PTSD disorder. The Veteran's attorney has argued that a staged rating during the period the Veteran was unemployable should be considered. Thus, in accordance with Rice, the issue of entitlement to a TDIU has been raised, and the issues have been amended as set forth on the cover page. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND While delay is regrettable, the Board finds that additional development is needed in this case. The Veteran contends that his PTSD is more severe than currently rated. In a March 2011 written statement from the Veteran's representative, it was noted that the Veteran was currently receiving VA treatment for his service-connected PTSD. The Board observes that VA treatment records in the claims file are current only through January 2010 and subsequent VA treatment records are not available for the Board to review on Virtual VA. In the same correspondence, it was noted that the Veteran had received treatment from the Owensboro Medical Health System. These treatment reports do not appear to be of record. Therefore, such records should be requested on remand. 38 C.F.R. § 3.159(c)(1) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The last examination regarding the Veteran's service-connected PTSD was in March 2010, three years ago. Further, the Veteran's representative noted in a June 2011 written statement that the Veteran had been taken back to court for threatening a neighbor. Because there may have been changes in the Veteran's condition, the Board finds that a new psychiatric examination would assist in fully and fairly evaluating the Veteran's claim for an increased initial rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, as explained in the Introduction, the issue of entitlement to a TDIU has been reasonably raised by the evidence of record. Because this issue is part of the Veteran's claim for higher initial ratings, the proper remedy here is for the Board to remand, rather than refer, the TDIU issue to the RO/AMC for proper development and adjudication. The Veteran has not been provided with VCAA notice of the requirements for a TDIU claim, nor has relevant employment information been obtained. Thus, on remand, the RO/AMC should provide corrective VCAA notice and request that the appropriate TDIU form be completed. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information since November 2007. Also ask the Veteran to submit documentation concerning the circumstances requiring his court appearance. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all private health care providers, to include Owensboro Medical Health System, who have treated his PTSD. After securing any necessary releases, the RO/AMC should request any records identified. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. Obtain all relevant VA mental health treatment records dated since January 2010. 3. After the above development is completed, afford the Veteran a VA psychiatric examination to determine the extent and severity of his PTSD. The claims folder should be reviewed by the examiner. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score as a result of his PTSD. The examiner should set forth a complete rationale for all findings and conclusions, to include any impact of the Veteran's PTSD on his social and occupational functioning. 4. After completion of the above development and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board if in order. 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). _________________________________________________ K. A. BANFIELD 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).