Citation Nr: 1314455 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 05-15 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michael J. Mooney, Attorney ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from November 1967 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his October 2010 substantive appeal, the appellant requested a Board hearing. In a July 2012 letter, the appellant's representative waived the request for a Board hearing. Thus, the hearing request is withdrawn and the Board may proceed to adjudicate the appeal. The Board notes that the appellant's claim for a higher rating and a TDIU was receiving in January 2009, less than one year after the May 2008 rating decision which granted service connection for PTSD with a rating of 30 percent. However, the Board has not construed the claim as a notice of disagreement with the rating assigned in the May 2008 rating decision because the appellant did not specifically express disagreement with the rating decision. 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 appellant is currently in receipt of service-connected benefits for PTSD, rated as 50 percent disabling. He contends that PTSD renders him unemployable. 38 C.F.R. § 4.16 (2012). A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In exceptional circumstances, where the veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). At present, the appellant does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). The appellant is in receipt of a 50 percent disability rating for PTSD. As the appellant does not meet the schedular criteria for a TDIU, the Board does not have authority to assign a TDIU rating in the first instance, but it may refer the claim to the Director of VA's C&P Service when it finds the evidence of record warrants such consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, in the September 2009 opinion, a VA psychologist found that because of the appellant's severe recalcitrant PTSD and depression, it was her opinion that the appellant was not employable at this time. The VA psychologist further stated that "[g]iven the long-term nature of his problems, his chance of becoming employable in the future in my opinion is minimal to none." In a June 2012 opinion, a private vocational expert, W.T.C., opined that the appellant was permanently and totally disabled. W.T.C. stated that "this conclusion was reached considering his education, work history, and the psychological limitations that he has as a result of his service-connected disability, PTSD." Based on the opinions indicating that the appellant is unemployable due to his service-connected PTSD, the Board finds that the Director of VA's C&P Service should consider whether the symptoms of the appellant's service-connected PTSD preclude substantially gainful occupation in light of the appellant's educational and occupational background. Regarding the issue of entitlement to a rating in excess of 50 percent for PTSD, the Board finds that the issue must be remanded for the issuance of a statement of the case (SOC). In the July 2009 rating decision, the RO granted a higher rating of 50 percent for the appellant's PTSD and denied the appellant's claim for a TDIU. The appellant filed a notice of disagreement in October 2009. In the notice of disagreement, the appellant stated that "I would like to file a N.O.D." He stated that "I would like to review my denied claim for individual unemployability, I would like to submit "new and material" evidence to support this claim for increase and the fact I cannot obtain/hold gainful employment due to my [service-connected] conditions." The appellant submitted a new opinion from a VA psychologist regarding his PTSD symptoms and employability at the same time as the notice of disagreement. The RO construed the statement as a notice of disagreement with the claim for a TDIU. However, as the appellant also referred to "this claim for increase" and submitted evidence relevant to his increased rating claim, the Board construes the statement as a notice of disagreement with the rating of 50 percent for PTSD, as well as the denial of the claim for TDIU. The Board notes that the appellant's representative has also asserted that the appellant appealed the 50 percent rating for PTSD. See July 2012, January 2013 statements. The record does not reflect that a statement of the case has been issued in response to the appellant's notice of disagreement pursuant to 38 C.F.R. § 19.26 regarding the claims. In this situation, the Court has indicated that the proper action is to remand the issue to the agency of original jurisdiction (AOJ) for appropriate action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) ("Thus, the next step was for the RO to issue an SOC on the denial of the . . . claim, and the Board should have remanded that issue to the RO, not referred it there, for issuance of that SOC."). As such, the Board finds that these issues should be remanded for the issuance of a statement of the case by the AOJ. In an April 2009 VA examination, the appellant reported that he was not working and had been on disability through social security for his back. He reported that he used to work as a machinist but stopped working after his last back operation in 1989. Although the appellant is not service-connected for a back disability, as the appellant is receiving Social Security Administration disability benefits, the records may be relevant to the appellant's claim. Thus, an attempt should be made to obtain the records. Finally, the VA treatment records in the file only date to March 2012. The appellant is receiving treatment for his service-connected PTSD at VA. Consequently, the Board requests the appellant's complete VA treatment records from March 2012 to present. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the appellant's VA treatment records from March 2012 to present. If no records are available, the claims folder must indicate this fact. 2. Request the appellant's records from the Social Security Administration regarding his disability benefits. If no records are available, the claims folder must indicate this fact. 3. After any outstanding evidence has been associated with the claims file, adjudicate the issue of entitlement to a rating in excess of 50 percent for PTSD. A separate rating action should be issued and the appellant should be notified of his appellate rights. He should also be informed that this new rating action, if unfavorable, will not be before the undersigned unless it is appealed to the Board. 4. After completing the actions requested above, refer the issue of whether the appellant is entitled to a TDIU on an extraschedular basis to the Director of VA's Compensation and Pension Service. The appellant should be informed of the ultimate outcome of any referral and allowed an opportunity to provide any additional argument or evidence in response. 5. Thereafter, if the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MILO H. HAWLEY 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).