Citation Nr: 1318122 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 07-00 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD), to include an extraschedular rating. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active service from January 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which, in pertinent part, reduced the rating assigned to the Veteran's service-connected PTSD to 50 percent effective April 30, 2004, and also denied his claim of entitlement to a TDIU. In an October 2006 rating decision, the RO in St. Paul, Minnesota, restored the 70 percent rating for the Veteran's service-connected PTSD effective April 30, 2004. This decision was issued to the Veteran and his service representative in November 2006. In an August 2010 decision, the Board, in part, denied the Veteran's claim of entitlement to an increased rating in excess of 70 percent for PTSD and remanded the claim for TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated November 8, 2012, the Court vacated the Board's decision on these issues and remanded the matter for action consistent with its decision. During the course of the appeal to the Court, the issue of TDIU was denied in a September 2011 supplemental statement of the case (SSOC) and returned to the Board. The Board remanded the issue again in January 2012 for additional development. In a June 2012 rating decision, the RO granted TDIU effective February 13, 2012. A Travel Board hearing was held at the RO in May 2010 before a Veterans Law Judge that is no longer employed by the Board. The Veteran was notified in a February 2013 letter and offered an opportunity to testify at a new hearing. He responded in March 2013 that he did not wish to appear at an additional hearing before another veterans law judge. Therefore, the Board will adjudicate his claims on their merits. 38 C.F.R. § 20.717 (2012). A copy of the May 2010 hearing transcript is of record and has been reviewed. A review of the Virtual VA paperless claims processing system does not reveal any additional documents 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 In a November 2012 Memorandum Decision, the Court vacated the Board's August 2010 decision which denied an increased rating for service-connected PTSD evaluated as 70 percent disabling, and remanded the issue of TDIU. The Court determined that as the criteria for a schedular rating for PTSD involved determining the level of occupational impairment, it was improper to deny an increase on that issue on a schedular and extraschedular basis while remanding TDIU, which also addresses employability issues. Specifically the Court noted that the August 2009 VA examination report used to determine whether the Veteran was entitled to a greater than 70 percent disability rating on both a schedular and extraschedular basis was also found to be inadequate to determine whether the Veteran was entitled to TDIU. Given the common criteria of regarding "ability to work," the Court determined that the issue of entitlement to an increased rating, in excess of 70 percent, for PTSD on both a schedular and extraschedular basis could not be decided based on an examination that contained inconsistent statements regarding the effect of the Veteran's PTSD on his employability. The August 2009 VA examination inconsistently stated both that the Veteran's PTSD would "render it impossible for an average person to follow a substantially gainful occupation," and that "[h]e is capable of substantial gainful employment." The criteria for a higher rating of 100 percent for PTSD contains a requirement for total occupational and social impairment due to symptoms including gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation as to time or place; and memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). During the course of the appeal, the Veteran was granted TDIU, effective February 13, 2012. The grant of TDIU was based on February 2012 VA examinations for hearing loss, tinnitus, and PTSD. In the February 2012 VA examination for PTSD, the examiner determined that the Veteran had total occupational and social impairment and that it was at least as likely as not that the Veteran's service-connected disabilities (PTSD, bilateral hearing loss, and tinnitus), without consideration of his age or nonservice-connected disabilities, rendered him unable to secure or follow a substantially gainful occupation consistent with educational and occupational experience. It is particularly noted that the February 2012 VA examiner determined that the Veteran had total occupational and social impairment with regard to his mental diagnoses, however, the remainder of the examination report did not support this contention. Symptoms and circumstances described in the February 2012 VA examination are consistent with those described in the August 2009 VA examination. The examiner addressed the prior inconsistency in the August 2009 VA examination report and noted that his statement, "[h]e is capable of substantial gainful employment," in the rationale section of the examination, was the accurate statement. Therefore an additional examination is required to address this discrepancy and determine the current severity level of the Veteran's service-connected PTSD. If it is determined that the schedular criteria does not adequately address the Veteran's level of disability and symptomatology, the case should be sent to the Director of Compensation Services, for extraschedular consideration. See 38 C.F.R. §§ 3.321(b)(1), 3.340(a), 3.341(a), and 4.16(b)(2012). Accordingly, the case is REMANDED for the following action: 1. Obtain any available VA treatment records generated since February 2012 and associate them with the claims file. 2. After completing the above, schedule the Veteran for a VA mental disorders examination at an appropriate location to determine the current severity of his service-connected PTSD. The following considerations will govern the examination: a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. The examination report must reflect review of pertinent material in the claims folder. b. After REVIEWING THE CLAIMS FILE and conducting an interview with, and an examination of, the Veteran, the examiner must provide current findings as to the severity of his PTSD to include effects on employment. The examiner must address the Veteran's contention that his current symptoms render him unemployable and are more severe than as reflected by a 70 percent rating. c. The examiner must complete an independent review of the claims file, but the Board draws the examiner's attention to prior VA examinations in August 2009 and February 2012. d. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. e. All clinical findings must be reported in detail and correlated to a specific diagnosis. 3. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefits sought, including an evaluation of whether the Veteran should be considered for an extraschedular rating under 38 C.F.R. §§ 3.321(b)(1), 4.16(b) (2012). If it is determined that the Veteran meets the requirements of an extraschedular rating, the case should be referred to the Director of Compensation Service, for the consideration of an extraschedular rating under 38 C.F.R. §§ 3.321(b)(1), 4.16(b) (2012). Unless the benefits sought on appeal are granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case, to include information regarding why the Veteran failed to meet the requirements for an extraschedular evaluation, and afforded an opportunity to respond. 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). _________________________________________________ JOHN Z. JONES 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).