Citation Nr: 1317437 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-13 735A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and H.H. ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to February 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held by videoconference before the undersigned in October 2012, and a transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action on his part is required. REMAND The Veteran seeks a rating in excess of 50 percent for service-connected PTSD, as well as entitlement to TDIU. Before the Board can adjudicate these claims on the merits, additional development is required. I. VA Treatment Records The Veteran testified at his Board hearing that he recently received in-patient treatment for PTSD in May or June of 2012 at the Houston, Texas VA Medical Center. See Board Hearing Tr. at 3, 11. He also noted that he had been receiving on-going treatment at the Lufkin, Texas VA Outpatient Clinic. Id. at 11. On remand, treatment records from the aforementioned facilities should be obtained. II. VA Examination The Veteran was afforded VA-contract examinations in January 2008 and December 2008, as well as a VA examination in April 2010 in connection with his claim for an increased rating for PTSD. The Veteran later testified at his October 2012 hearing before the Board that his PTSD has worsened since his last VA examination. See Board Hearing Tr. at 12. As discussed above, the Veteran has also identified outstanding VA treatment records that document in-patient treatment for PTSD and depression, which also indicates that the Veteran is suffering from possible worsening symptoms. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, an additional VA examination is necessary for the purpose of ascertaining the current severity of the Veteran's service-connected PTSD. III. TDIU In May 2011, the RO in Houston, Texas denied the Veteran's claim of entitlement to TDIU. The Veteran did not appeal. At his Board hearing in October 2012, however, the Veteran stated that he wished to claim entitlement to TDIU, as he believes that his PTSD precludes employment. The United States Court of Appeals for Veterans Claims has held that a claim for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. This matter warrants additional development and adjudication on appeal and is inextricably intertwined with the evaluation claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's treatment records from the VA Medical Center in Houston, Texas, as well as updated treatment records from the VA Outpatient Clinic in Lufkin, Texas, from March 2012. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After the development outlined in Item (1) is completed, schedule the Veteran for an examination to determine the current nature and severity of his service-connected PTSD. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. A report of the examination should be prepared and associated with the Veteran's VA claims folder. 3. Thereafter, and after undertaking any additional development deemed necessary (including any development needed regarding entitlement to TDIU), readjudicate the issues on appeal, including entitlement to TDIU. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). _________________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).