Citation Nr: 1312422 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 06-00 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active military service from April 1966 to April 1969. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2010, the Board remanded this matter for additional development. Subsequently, the Board denied the Veteran's claim in a September 2011 decision. He appealed that decision to the Court of Appeals for Veterans Claims (Court), and in March 2012, the Court issued an order vacating and remanding the September 2011 decision for action consistent with the terms of a March 2012 Joint Motion for Remand. The issue of entitlement to a rating higher than 50 percent for PTSD has been raised by the record (correspondence dated in January 2013, received in February 2013), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. In referring this matter, the Board notes that, contrary to the Veteran's representative's January 2013 assertion, this matter has been adjudicated by the AOJ subsequent to the various PTSD examinations provided since 2008. During the course of the appeal for a TDIU, the RO issued a May 2011 rating decision denying a claim for an increased rating for PTSD; the Veteran did not appeal that decision, and it became final. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Under the terms of the March 2012 Joint Motion for Remand (JMR), this matter must be remanded to provide the Veteran with a new examination to determine the current severity of his service-connected PTSD and the impact of that disability on his employability, and to obtain current treatment records. A new examination is required to properly evaluate the impact of the Veteran's PTSD symptomatology on his employability, as there are no adequate examination reports of record addressing this issue. The March 2012 JMR provides that the Board improperly relied on examination reports from July 2010 and February 2011 that included in their respective rationales the finding that the Veteran demonstrated behavioral problems prior to service that contributed to his present unemployability. The JMR indicated that without competent findings distinguishing between any pre-service psychiatric symptomatology and his presently-diagnosed PTSD, all psychiatric symptoms must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). On remand, the Veteran should be provided a new examination to determine the current severity of his PTSD symptoms, and to resolve the question of whether the Veteran is precluded from securing and following substantially gainful employment due to his service-connected disabilities, whether alone or in combination. It is apparent that there may be outstanding VA treatment records that would reflect on the Veteran's current physical and psychiatric conditions. These ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Board determines that the referred claim of entitlement to an increased rating in excess of 50 percent for PTSD is inextricably intertwined with the claim for a TDIU that is being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As such, the issue of entitlement to a TDIU should not be readjudicated prior to the AOJ's adjudication of the issue of entitlement to an increased rating for PTSD. That being said, the Board acknowledges that the examination herein ordered should address both the referred and remanded issues. Accordingly, the case is REMANDED for the following action: 1. Ensure that all current VA treatment records through the present are associated with the Veteran's claims folder. 2. Prior to the adjudication of the claim of entitlement to a TDIU, perform all development necessary to adjudicate the issue of entitlement to an increased rating for PTSD. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of the Veteran's service-connected PTSD. The examiner must review the claims file, any records in the Virtual VA electronic records system, and this Remand; the ensuing report should reflect that such a review occurred. The examiner should fully document the Veteran's current PTSD symptoms, and their severity. The examiner also should describe how the Veteran's service-connected disabilities, including PTSD, hearing loss, and tinnitus, either alone or in the aggregate, affect his ability to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. To the extent there are non-service connected symptoms that can be dissociated from the service connected symptoms, that should be set out. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should so state, and should provide a complete explanation as to why no opinion can be reached. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 5. Readjudicate the claim on appeal (following, or in conjunction with, the adjudication of the claim for an increased rating for PTSD). If any benefits are not granted to the Veteran's satisfaction, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL D. LYON 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).