Citation Nr: 1316244 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-37 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to July 1969. This appeal to the Board of Veterans' Appeals (Board) arises from a November 2008 rating decision in which the RO, in Albuquerque, New Mexico granted the Veteran service connection for PTSD with an evaluation of 30 percent. The Veteran was notified of the rating decision in December 2008. In December 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that he cannot work due to alcohol abuse which, in turn, is claimed to be caused by his service-connected PTSD. The Board has therefore added a TDIU claim to the caption page. Further development is needed to properly adjudicate the TDIU claim. A review of the Virtual VA paperless claims processing system reveals nothing further pertinent to the present appeal. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to obtain a new VA examination. The most recent VA examination for the Veteran's PTSD was in August 2008, almost five years ago. The Veteran has indicated in his December 2008 NOD that his PTSD is worse than reflected in the November 2008 rating decision. He stated that he self medicates his condition with alcohol and that, in turn, has led to the recent loss of his job, inability to find work, and marital problems. In his September 2009 VA Form 9, the Veteran also indicated that he was not fully forthcoming with the extent of his PTSD at the August 2008 VA examination, as he was afraid of being placed in a mental hospital. In a January 2010 statement, the Veteran indicated that his PTSD had continued to worsen. He provided that his nightmares and depression have increased. As a result, the Veteran claims that his medication was increased. The April 2013 IHP contended that the Veteran's condition has further worsened, and that he should be provided with a concurrent VA examination in order to accurately assess the worsening of this condition. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). As the Veteran has also alleged that he has an inability to work based upon alcohol abuse that is claimed to be related to his PTSD, the examiner should also evaluate the Veteran's service-connected PTSD concerning whether his service-connected disability prevents all forms of gainful employment. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the PTSD. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. In particular, the examiner should discuss the relationship of the Veteran's alcohol abuse and its current severity, as related to PTSD. The Veteran's lay statements regarding his alcohol abuse should be taken as credible and considered accordingly. 3. The Veteran should also be afforded an examination to determine whether the Veteran, based on his work history, level of education, and service-connected disabilities, but not his age or any nonservice-connected disability, is unable to secure or follow a substantially gainful occupation. The examiner should obtain a complete work history from the Veteran, including the specific duties that were required in each position. The examiner should discuss all impairment and/or symptoms caused by the service-connected PTSD and state whether that disability and associated impairment, renders him unable to secure or follow a substantially gainful occupation. This should be discussed in terms of sedentary and manual type of employment. The examiner should specifically address what type of duties the Veteran would be capable of performing in light of his service-connected disability and what duties he would not be able to perform due to his service-connected disability. The examiner should comment on the duties associated with his past positions and comment on whether he would be able to perform those duties or similar duties taking into consideration his service-connected disability. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished. An explanation for all opinions expressed must be provided. The rationale for the opinion should include a discussion of the impact of the Veteran's service-connected disability, his past work history/duties and his educational background. The examiner should not take into consideration the Veteran's age or whether it may be difficult for the Veteran to find employment. Rather, the opinion should focus on whether the Veteran's service-connected disability prevents him from performing the physical and mental acts required for a substantially gainful occupation. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ WAYNE M. BRAEUER 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).