Citation Nr: 1313836 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-25 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1971. This matter is on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the claim is currently with the RO in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in July 2011. A transcript of the hearing is of record. This claim was previously denied by the Board in October 2011. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims, which vacated the Board's decision in July 2012 and remanded the case for further development. The Veteran was also given leave to present additional evidence. The appeal is REMANDED to the RO. REMAND VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board finds that additional development is required. At an August 2010 VA PTSD examination, the Veteran claimed to experience recurrent and distressing recollections related to his service, and other symptoms such as avoidance, insomnia, and periods of isolation from people other than his family. Upon examination, he appeared neat and cleanly groomed, his mood was good and his affect was appropriate. He was observed to be fully oriented. His judgment and insight were average. He denied hallucinations and suicidal and homicidal ideation. However, in a September 2010 statement, the Veteran asserted that the August 2010 VA examination was inadequate. He specifically stated that he was reluctant to discuss symptoms such as suicidal ideation and hallucinations. He also implied that his 45-minute session was inadequate for his symptoms to be adequately assessed. The Board will defer the question of whether the August 2010 VA examination was in adequate because the Veteran's September 2010 statement suggests that his symptoms have worsened since that time. VA should schedule a new examination to accurately assess the current level of impairment when there is evidence that the claimed disability has worsened. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the claim must be remanded for a VA examination to assess the current severity of PTSD. In addition to his PTSD claim, the Board also notes that the issue of entitlement to TDIU was denied by the RO in January 2010. However, when a veteran submits a claim seeking an increased rating for a service-connected medical disability, it is construed as a claim for the highest rating possible, to include entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). If the issue of entitlement to TDIU is raised by the evidence of record, it is part of the underlying appeal. In this case, the Veteran's assertion that his disorder is worse than it was previously and has limited or precluded working effectively re-raises the issue of entitlement to TDIU as part of his increased rating claim. Finally, in a mental health evaluation in July 2008, the Veteran's spouse stated that she was "very discouraged" about the Veteran's ability to continue working, and was considering the possibility of applying for disability benefits with the Social Security Administration (SSA). Because almost five years has elapsed since that time, it is possible that an application for SSA benefits was eventually submitted. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. Therefore, on remand, the RO should investigate whether such records are outstanding. 38 U.S.C.A § 5103A(c)(3) (2012); Diorio v. Nicholson, 20 Vet. App. 193 (2006); Tetro v. Gober, 14 Vet. App. 100 (2000); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: 1. Acquire all treatment records from the VA Medical Center in Louisville, Kentucky since January 2010 and from any other VA facility from which the Veteran has received treatment. 2. Inquire if the Veteran has submitted a claim for disability benefits with the SSA and, if a claim has been filed, obtain the records that were submitted in conjunction with that claim, including the medical evidence used to determine disability eligibility. If no SSA records are available, it should be so noted in the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and extent of his psychiatric disability and whether he is unable to secure or follow substantially gainful occupation by reason of service-connected disability. The examiner must review the claims file and must note that review in the report. Any testing deemed necessary should be performed. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. The examiner should provide the following information: (a) Identify all current manifestations of the Veteran's psychiatric disability, provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected psychiatric disorder, and assign a Global Assessment of Functioning (GAF) score consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities (coronary artery disease status post myocardial infarction, PTSD, and residual of bilateral vocal chord granular cell tumor) preclude him from securing and following substantially gainful employment consistent with his education and occupational experience? Substantially gainful employment is an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. Faust v. West, 13 Vet. App. 342 (2000). If the Veteran is capable of employment, the examiner should state the type of employment the Veteran can perform. 4. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).