Citation Nr: 1314675 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-11 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. This appeal to the Board of Veterans' Appeals (Board) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for PTSD and assigned an 30 percent rating, effective December 3, 2007. The Veteran appealed for an earlier effective date and for a higher rating for PTSD. The Veteran testified at a hearing at the RO in October 2010, before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the claims file. In March 2011, the Board denied the Veteran's claim for entitlement to an effective date earlier than December 3, 2007, for the grant of service connection for PTSD. Also, the Board recognized an inferred claim for a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the implied claim for a TDIU along with the claim for a higher rating for PTSD for additional development and consideration. That development was accomplished. A February 2012 rating decision increased the rating for the Veteran's PTSD to 50 percent, effective December 3, 2007, the date service connection was established. He has continued to appeal, requesting an even higher initial rating. A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The Board previously remanded this case in March 2011 to provide the Veteran a VA examination to assess the severity of his service-connected PTSD and to provide an opinion on the TDIU claim. On remand, the Veteran underwent an August 2011 PTSD examination by a VA clinical psychologist. However, the Board finds that the examiner's findings and opinions provided are incomplete, such that the Board must again remand these claims. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. Barr v. Nicholson, 21. Vet. App. 303 (2007). The Veteran's contentions and the record raise a claim for a TDIU, based on potential occupational impairment due to the Veteran's service-connected PTSD. The Veteran has been unemployed from his prior occupation as a machinist since approximately 2006. He maintains that his unemployment is due to his service connected PTSD. The Veteran is currently service-connected for PTSD, rated 50 percent; tinnitus, rated 10 percent; and hearing loss, rated 0 percent. He has a combined service-connected rating of 60 percent. Thus, the Veteran does not currently meet the schedular criteria for TDIU eligibility under 38 C.F.R. § 4.16(a), but might still show entitlement to TDIU under § 4.16(b). On remand, the August 2011 VA examiner's concluding remarks are vague and not supported by any articulated rationale. The examiner concluded, "At this point, his PTSD symptoms do result in significant impairment to both his social and occupational functioning. However, it is less likely than not that his PTSD symptoms render him completely unable to work." [italicized for emphasis]. Earlier in the report, the examiner also noted, "His PTSD symptoms have certainly made it difficult for him to maintain relationships, and to a somewhat lesser degree, hold a job." The Board finds the August 2011 VA examiner's findings and opinions are inconclusive to resolve these claims. With respect to the issue of a TDIU, the last sentence of the August 2011 VA examination report appears to provide a negative opinion against the Veteran's TDIU claim. However, the Board observes that for the Veteran to establish TDIU, it is not necessary to show that his PTSD completely prevents his ability to work. This wording indicates the examiner is using a harsher standard than required. Rather, it is sufficient to show that the service-connected PTSD renders him unable to maintain or obtain substantially gainful employment. The Board's March 2011 remand asked the examiner to state whether it is at least as likely as not (50 percent or greater) that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Moreover, the examiner did not provide any rationale for the negative opinion against the Veteran's TDIU claim. Medical examinations that contain only data and conclusions, and do not provide a rationale for an opinion are incomplete. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The PTSD and TDIU claims are inextricably intertwined, since both are concerned with occupational impairment due to the PTSD. Babchak v. Principi, 3 Vet. App. 466 (1992). The resolution of one claim could affect the outcome of the other claim. Harris v. Derwinski, 1 Vet. App. 180 (1991) Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a psychologist or psychiatrist who has not previously examined him. The examiner must review the claims file and must note that review in the report. The examiner should evaluate and discuss the Veteran's symptomatology due to a psychiatric disability and should provide an opinion as to the social and industrial impairment resulting from the psychiatric disability. The examiner should also provide as opinion as to whether it at least as likely as not (50 percent probability or greater) that the Veteran is unemployable due to his service-connected PTSD, tinnitus, and hearing loss. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. If the Veteran is found capable of obtaining and retaining employment, the examiner should state what type of employment is feasible. 2. Then readjudicate the claims, with consideration of 38 C.F.R. § 3.321(b)(1) and 38 C.F.R. § 4.16(b). If the 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 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).