Citation Nr: 1316161 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 07-19 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to September 15, 2008. 2. Entitlement to an initial evaluation in excess of 70 percent for PTSD, from September 15, 2008. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), prior to October 16, 2008. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran's claim for service connection for PTSD, and assigned a 50 percent evaluation for it, effective December 19, 2005. The Veteran disagreed with the assigned rating. Based on the receipt of additional evidence, the RO, in a July 2009 rating decision, assigned a 70 percent evaluation for PTSD, effective September 15, 2008. In September 2009 and April 2011, the Board remanded the claim for additional development of the record. By decision dated June 2012, the Board denied the Veteran's claim for an increased rating for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated November 2012, granted a Joint Motion for Remand (JMR). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The JMR directed the Board to address whether a claim for TDIU had been reasonably raised by the record. Although not addressed in the JMR, the Board notes that by rating action dated July 2009, the RO granted TDIU, effective October 16, 2008. Nevertheless, the Board finds the issue of entitlement to TDIU, prior to October 16, 2008, is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes the January 2006 VA psychiatric examination demonstrated the Veteran had worked for 22 years as a police officer when he retired in 1990, and he had then worked in construction for the state until February 2004. He stated he owned his own tour company business, but it was not a full-time job. He indicated he worked mostly for enjoyment. On mental status evaluation, the Veteran's memory was satisfactory. He was oriented in all spheres. There was an increase in the level of emotionality when discussing his in-service stressors. His thought content contained no suicidal or homicidal ideation. His thought process was spontaneous and abundant. There were no delusions or ideas of reference. His concentration was satisfactory. His mood was euthymic and his range of affect broad. He was alert, responsive and cooperative. His insight was fair and his judgment intact. The diagnosis was PTSD. The Global Assessment of Functioning score was 41. Another VA psychiatric examination was conducted in November 2006. The Veteran noted he was an off-road tour guide, but did this on a very part-time basis. He indicated his customers were very rare. The examiner noted the business was essentially defunct. The Veteran asserted he was active in the Arizona Historical Society and that he had some close friends. Following a mental status examination, the diagnoses were PTSD, severe, and depressive disorder, not otherwise specified. The Global Assessment of Functioning score was 32. The examiner commented the Veteran presented with all symptoms of PTSD, include physiological hyperarousal, reexperiencing of combat trauma and avoidance behaviors. He also demonstrated symptoms of depression, including isolation and survivor guilt. As a result of PTSD, all aspects of the Veteran's functioning had been impaired, including his judgment, self-care, ability to enjoy life, his mood and his marital and social relationships. He further stated the Veteran's PTSD symptoms had severely impacted his occupational functioning. The examiner observed that the Veteran had attempted to start a part-time business but he had a great deal of difficulty tolerating his customers because of his PTSD symptoms. He opined that because of the Veteran's work history and the fact he was currently unemployed, he was considered unemployable. The prognosis for the Veteran's significant improvement with respect to his occupation, social or educational functioning was guarded at best. In March 2013, E.J.C., a vocational consultant, related he reviewed the claims folder and had a telephone conversation with the Veteran in March 2013. He commented the Veteran has had difficulty since April 2006 in finding work and functioning in a competitive work environment, and that his PTSD had prevented him from earning any meaningful income since 2003. He concluded the Veteran's service-connected disabilities had resulted in his inability to secure and follow a substantially gainful occupation since 2003. VA medical records reflect Global Assessment of Functioning scores that predominantly range from 30 to 45, with the exception of a score of 60 following a VA hospitalization in September 2007. There are some references to the fact the Veteran has suicidal ideation. The most recent VA psychiatric examination was conducted in April 2010. At that time, it was reported the Veteran had chronic suicidal ideation, even in the previous two years. It was further noted the Veteran exhibited some ritualistic/obsessive behavior. He had no hallucinations. He did not have panic attacks and was able to maintain personal hygiene. The Board notes that there are indications of a possible increase in severity of the disorder since the most recent VA examination three years ago. Therefore, another examination is warranted. In addition, this would allow an opportunity to obtain a retrospective opinion regarding whether the service connected disability rendered the Veteran unemployable prior to October 16, 2008. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request he furnish the names and dates of treatment from all medical providers, VA and non-VA, who have treated him since for PTSD since 2011. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the Veteran not already of record. 2. Thereafter, schedule a VA psychiatric examination to determine the nature and severity of the Veteran's PTSD. The examination report should include a detailed account of all pathology found to be present. If there are psychiatric disorders other than PTSD, the examiner should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be specified. The examiner should describe how the symptoms of PTSD affect the appellant's social and industrial capacity. The examiner should also address whether the Veteran's PTSD, either alone or in combination with other service-connected disabilities such as the gunshot wound of the triceps and malaria, precluded substantially gainful employment (without consideration of the appellant's age), prior to October 16, 2008. The report of the examination should include a complete rationale for all opinions expressed. All necessary special studies or tests are to be accomplished. The claims folder must be made available to the examiner for review in conjunction with the examination. 3. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claims may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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 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 MARTIN 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).