Citation Nr: 1315124 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-17 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial compensable rating for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from August 1968 to September 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008, rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), that implemented the Board's October 2008 decision, and granted service connection for PTSD and assigned an initial noncompensable evaluation effective June 4, 2003, the date on which the claim for service connection was filed. The Veteran appealed the initial rating assigned. Pursuant to the Veteran's request, a hearing before the Board was scheduled for May 2012. In correspondence in April 2012, the Veteran's court appointed guardian/conservator indicated that the Veteran would be unable to attend the hearing due his medical condition, but wanted his representative to attend in his stead. In May 2012, the Veteran's representative testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. A May 2010 rating decision denied the Veteran's claim for entitlement to a TDIU. More recently, the Veteran has claimed that his service-connected PTSD renders him unemployable and the evidence of record shows that Veteran is currently unemployed. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As such, the Board finds that the issue has been raised. Therefore, the Board finds that this issue is properly before it for appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND In an October 2008 decision the Board granted service connection for PTSD; this decision was implemented in the December 2008 rating decision on appeal. The RO assigned an initial noncompensable evaluation effective June 4, 2003. The Veteran contends that he is entitled to an initial compensable disability rating. The Veteran has a number of psychiatric diagnoses, including PTSD. It is unclear, however, which symptoms over the years are attributed to PTSD. An attempt to identify those symptoms related to PTSD should be made. This will require the efforts of a person trained in medicine. It also appears from the record, the Veteran may be in receipt of Social Security Administration (SSA) benefits, based at least in part on his psychiatric illness. The SSA records should be obtained. Additionally, according to a letter of guardianship in October 20, 2011, from the Probate Court of Butler County, Missouri, the Veteran's was appointed a guardian, Ms. [redacted], because the Veteran was determined by the court to be incompetent and disabled. The RO should obtain these records on remand. Next, as mentioned in the Introduction the evidence of record raises a claim for entitlement to TDIU, as the Veteran has asserted that he is unemployable due to his psychiatric disorder. Rice, supra. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with the issue of whether the Veteran is entitled to an initial compensable evaluation in PTSD since both involve whether there is total occupational impairment. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (where facts underlying separate claims are "intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). As the claim for an increased rating for a psychiatric disorder is being remanded for additional development, the outcome of which could possibly have bearing on whether the Veteran meets the criteria for TDIU benefits, the Board finds that the claim for TDIU is inextricably intertwined with his claim for an increased rating for PTSD. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, as the Veteran receives medical care through VA, treatment records dating from March 2011 VA Medical Center should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Also, the Veteran should be requested to provide any outstanding private medical records or authorize VA to obtain the records, to include medical records for any psychiatric hospitalizations and outpatient treatment records. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of symptomatology associated with the service-connected PTSD including any related occupational impairment(s), as well as any evidence in support of his claim for TDIU. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 2. Obtain, either electronically or physically, all psychiatric treatment records from the St. Louis VAMC system, dated since March 2011. All attempts to obtain these records should be documented in the claims file. 3. Request the Veteran to identify any sources of private treatment or evaluation relevant to the claims on appeal. Then, undertake appropriate efforts to attempt to obtain any indicated records. 4. Obtain from the SSA and associate with the claims file a copy of any decision(s) issued regarding the Veteran's claim for Social Security disability benefits and the records, including medical records relied upon in that decision. 5. An attempt should be made to obtain copies of documents from the Butler County, Missouri, Probate Court, pertaining to Case File Number [redacted], which appointed Ms. [redacted] as Veteran's legal guardian. 6. After securing the necessary release from the Veteran/guardian, contact the facility in which he resides, and make reasonable efforts to secure all psychiatric medical notes and records pertinent to the Veteran. 7. After the above development is completed, schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of the Veteran's service-connected PTSD, and to differentiate, if possible, symptoms attributed to PTSD reflected in the record since 2003, from those of any other psychiatric illness from which the Veteran has suffered since that time. The claims file must reviewed by the examiner, including the Veteran's lay assertions, and the examination report should reflect that review. Any indicated diagnostic tests and studies should be accomplished. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functioning (GAF) Scale score and all pertinent symptomatology and findings should be reported in detail. The examiner should include a complete rationale for each opinion expressed. The examiner is asked to address the following, (including based on a record review alone if the Veteran is unable or unwilling to report for the examination): a) Identify symptoms exclusive to PTSD. b) Identify symptoms common to the other diagnosed psychiatric disorders. c) Distinguish, to the extent possible, occasions in the record when the Veteran is exhibiting symptoms of PTSD, from those when he is exhibiting symptoms unrelated to PTSD. The examiner should comment on the following evidence: the VA examination reports of April 2008, February 2009, and January 2011; private hospitalization records; and VA hospitalization records. d) If it is not medically possible to distinguish the symptoms of the service-connected PTSD from those attributable to any nonservice-connected psychiatric disorders, to include substance/alcohol abuse, the examiner should clearly so state. e) Provide an opinion as to whether the Veteran's service-connected PTSD without consideration of his nonservice-connected disabilities, renders him unable to secure or follow a substantially gainful occupation consistent with his employment history, educational and vocational attainment. 8. Thereafter, readjudicate the Veteran's claims. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).