Citation Nr: 1314323 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10 45-782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from July 1969 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran appealed this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system reveals VA treatment records which are pertinent to the present appeal and have been considered accordingly. 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 Initial Rating for PTSD In the January 2010 rating decision on appeal, the Veteran was awarded service connection for PTSD and granted an evaluation of 30 percent effective March 20, 2007. Prior to that rating decision the Veteran had been afforded a VA examination in September 2009. Since that time, however, treatment records show that the Veteran's symptomatology has been becoming worse. Specifically, the Board notes that in September 2009 the Veteran's Global Assessment of Functioning (GAF) score was 65 indicating mild symptoms. Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The record shows that GAF scores have continued to drop, however, and in October 2012 the Veteran's GAF score was 50 - an indication of serious symptoms. Furthermore in June 2011 the Veteran reported having quit his job with increasing feelings of irritability and difficulty getting along with coworkers. Psychiatric treatment records from October 2012 showed that the Veteran was feeling more depressed. His mood had been sad and included crying spells, and energy and appetite were reduced. The Veteran had occasional nightmares about Vietnam and occasional irritability as well as continued avoidance behavior and occasional intrusive memories. Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As part of that duty, VA must supply a VA examination when it is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The duty to conduct an additional examination may be triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995); (where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). In this case, not only was the last examination more than two years ago, there is evidence of worsening symptomatology that was not reflected in the prior VA examination. Before the Board can properly adjudicate the Veteran's claim, a new examination must be conducted. Turning to the claim for a TDIU, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As noted above, in June 2011, the Veteran indicated that he was not working due to his PTSD symptoms. An October 2011 VA outpatient treatment record noted that he was working again. However, in a January 2013 statement, the Veteran's wife indicated that he had lost two jobs due to his PTSD symptoms. As such, the issue of entitlement to a TDIU is raised by the record, and the issue is properly before the Board. The Board is remanding this matter for further development consistent with the Court decision in Rice, holding that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records relevant to the Veteran's claim for a higher initial rating for PTSD. 2. Send the Veteran additional VCAA notice as to the issue of entitlement to a TDIU. All notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107 (West Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159 (2011), must be fully met. 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. 3. Schedule the Veteran for a VA psychiatric examination to determine the current level symptomatology due to the service-connected PTSD. The VA examiner should review the relevant evidence in the claims folder, as well as the Veteran's complaints and clinical findings. The examiner should discuss whether the Veteran has occupational and social impairment with reduces reliability and productivity All signs and symptoms of the service-connected PTSD should be reported in detail, including the Veteran's GAF score. Finally, the examiner should render an opinion as to whether the service-connected PTSD precludes the Veteran from working at substantially gainful employment consistent with his occupational and educational background. 4. After completing all indicated development readjudicate the claims for entitlement to an increased initial rating for PTSD and TDIU in light of all of the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and the Veteran should be afforded a reasonable opportunity response. 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). 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. J. ALIBRANDO 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).