Citation Nr: 1318221 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-43 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial 30 percent disability rating, effective May 7, 2008, the date the claim for service connection was received. For reasons explained in greater detail below, the Board finds that the record reasonably raises a claim for a total disability rating based on individual unemployability. Although this issue was not certified for appellate review, the Board notes the recent judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the Board has rephrased the issues as listed on the title page to better reflect the claims on 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 The Board's review of the claims file reveals that further development is necessary before the claims on appeal can be properly adjudicated. The Veteran essentially contends that at least a 70 or 100 percent disability rating is warranted for his service-connected PTSD in light of private psychological evaluations and treatment summaries from LG, MA LPA and AF, PhD at PCS dated in September 2008 and May 2009, which state that his PTSD symptomatology is productive of "major impairment" with an assigned GAF score of 36. The Veteran's service-connected PTSD disability was most recently examined by VA in December 2008, more than 4 years ago. Moreover, his assigned GAF score at that time was 51. As noted above, a private treatment summary and a report of psychological evaluation were received in September 2009 and May 2009, which show a diagnosis of PTSD with an assigned GAF score of 36 on both occasions. This evidence suggests that the Veteran's PTSD symptomatology may have worsened since he was most recently examined in December 2008. When a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Given this evidence, a current VA examination is necessary to ascertain the current severity of the Veteran's PTSD. Moreover, the Board notes that the September 2008 and May 2009 private psychological treatment summary and psychological evaluation report appear to be rather vague and do not provide any supporting rationale for the conclusions reached regarding the severity of the Veteran's PTSD symptomatology. Accordingly, the actual clinical treatment records as opposed to a treatment summary pertaining to any counseling or treatment that the Veteran has received for PTSD from LG, MA LPA and AF, PhD at PCS since May 2008 should be sought. Ongoing VA treatment records should also be obtained from the Durham VA Medical Center dating since July 2009. Furthermore, the September 2009 private report of psychological evaluation states that the Veteran experiences significant disturbances in all areas of his life and that his prognosis for recovery is very poor. It was noted that he is highly likely to have marked worsening of his PTSD symptoms due to stressors inherent in any work environment. Thus, he his counselor opined that he is permanently and totally disabled and unemployable. VA treatment records, however, show that from at least April 2007 through June 2009, he remained gainfully employed in a recycling job. Nevertheless, in his April 2009 notice of disagreement, the Veteran suggested that a 100 percent evaluation is warranted for his service-connected PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim for an increased rating. Id. at 453. In light of Rice, the Veteran has raised the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disability and further development is in order. Finally, given the conflicting lay evidence of record pertaining to the severity of the Veteran's service-connected PTSD and its effects on his occupation, the Veteran should be asked to provide any documents such as work evaluations and leave statements from his former employer that tend to support his claim that his service-connected PTSD disability interferes with his work performance. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran with a formal application for a claim for a TDIU and with VCAA notice (38 C.F.R. § 3.159(b)) addressing the information and evidence necessary to substantiate a claim for a TDIU. 2. The RO/AMC should contact the appellant and request that he furnish the names, addresses, and dates of treatment of all medical providers, VA and non-VA, from whom he has received treatment for PTSD since May 2007. He should be specifically asked to provide a release form to enable VA to request psychological clinical treatment records and evaluation reports from LG, MA LPA and AF PhD at PCS dating since May 2008. Additionally, the Veteran should be requested to submit any records, such as work evaluations and leave statements, from any current or former employer that document any adverse occupational effects of his PTSD. After securing the necessary authorization for release of this information, the RO/AMC should seek to obtain copies of all psychological clinical treatment records and evaluations. Also obtain ongoing VA treatment records, if any, from the Durham VA Medical Center dating since July 2009. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159 must be achieved. The claimant must then be given an opportunity to respond. 3. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination to determine all manifestations and residuals associated with his service-connected PTSD and the severity of any such manifestations and residuals. The claims folder, to include any relevant records contained in Virtual VA, must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All appropriate tests and studies should be performed, to include an interview and a comprehensive mental status examination. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations of the Veteran's service-connected PTSD and discuss the impact of such symptoms on his daily activities and social and occupational functioning. A Global Assessment of Functioning (GAF) score should be assigned, and the examiner should explain the basis for the assigned score. To the extent possible, the examiner should reconcile the conflicting information pertaining to the severity of the Veteran's PTSD noted in the December 2008 VA examination report and the May 2008 September 2008 private treatment report. Also to the extent possible, discuss any effects due to both psychiatric symptoms and manifestations of the claimed disability on his ability to obtain or retain substantially gainful employment. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. Thereafter, readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case, and afford the Veteran an opportunity to respond. Thereafter, the case must be returned to the Board, if in order. The Veteran 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). _________________________________________________ DAVID L. WIGHT 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).