Citation Nr: 1319236 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 11-18 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability for the period prior to February 23, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO). In a February 2010 statement, the Veteran indicated that he last worked in 1987, and lost his job as a result of missing too many days of work due to his posttraumatic stress disorder (PTSD). The record raises an informal claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected PTSD. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. During the pendency of this appeal, in an April 2010 rating decision, the RO assigned a 100 percent evaluation for the Veteran's service-connected bilateral hearing loss, effective February 23, 2010. As such, the Veteran's combined rating has remained 100 percent since February 23, 2010. Accordingly, the Board's review of the issue of entitlement to a TDIU will be limited to the period prior to February 23, 2010. Accordingly, such issue on the title page of this decision has been amended to reflect these facts. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issues of entitlement to an initial disability rating in excess of 30 percent for PTSD and entitlement to a TDIU for the period prior to February 23, 2010 are remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Additional development is required before the issues on appeal can be adjudicated. Specifically, an examination, as well as an opinion are necessary, for the reasons discussed below. Further, VA must obtain any outstanding VA outpatient treatment records, as well as private treatment records adequately identified by the Veteran, and associate them with the record. Finally, the Veteran must be provided appropriate notice, as well as a formal application regarding his claim of entitlement to TDIU. With regard to the claim for an initial disability rating in excess of 30 percent for PTSD, during the May 2013 hearing before the Board, the Veteran and his spouse testified to his increased symptoms. In this regard, VA outpatient treatment records dated in October 2009 through December 2009 and private treatment records dated in April 2009 through February 2010, indicate that the Veteran's service-connected PTSD may have increased in severity since the most recent February 2008 VA examination. Moreover, the aforementioned treatment records demonstrate diagnoses of PTSD, as well as major depressive disorder. Specifically, in a February 2010 letter, the Veteran's private neurologist, I.A.C.M., reported that the Veteran had a long standing history of depression and PTSD since service. I.A.C.M. further stated that the "patient has developed signs of mild cognitive impairment most probable related to his primary psychiatric condition." In addition, such records also note symptoms of anxiety, sleep disturbance, and memory loss; however, do not distinguish which symptoms are attributed to the Veteran's service-connected PTSD. Further, VA outpatient treatment records dated in 2005 note diagnoses of a cognitive disorder, with associated symptoms of memory impairment. Thus, the evidence of record is insufficient for the Board to distinguish between symptoms of service-connected PTSD and any other diagnosed psychiatric and/or neurological disorders that may be present. Accordingly, the Board finds that another VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998). In addition, during the aforementioned hearing, the Veteran asserted that he received ongoing treatment for his PTSD at an unspecified VA Medical Center. The record contains VA outpatient treatment records to January 2010; thus, VA must obtain any VA outpatient treatment records from January 2010 to the present. See 38 C.F.R. § 3.159 (c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the Veteran also stated that he received ongoing treatment from a private neurologist, L.S, for his service-connected PTSD. On remand, VA must obtain and associate such records with the Veteran's claims files. See 3.159 (c)(1) (2012). VA will award TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16(a). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As above, in a February 2010 statement, the Veteran indicated that he last worked in 1987, and lost his job as a result of missing too many days of work due to his service-connected PTSD. Moreover, in a February 2008 letter, Dr. I.A.C.M. reported that the Veteran is "totally disabled" due to his diagnoses of major depression and PTSD. Further, a March 2010 VA audiological examination report includes the examiner's comment, that the Veteran was not able to work in tasks that require communication due to his service-connected bilateral hearing loss. In this regard, as of July 6, 2005, service connection is in effect for PTSD, rated as 30 percent disabling; and for bilateral hearing loss, rated as 50 percent disabling, which meet the schedular percentage requirements. See Id. Thus, on remand, a VA opinion that addresses the effect of the Veteran's service-connected disabilities on his ability to work is necessary. Friscia v. Brown, 7 Vet. App. 294 (1994). As discussed above, entitlement to a TDIU will be limited to the period prior to February 23, 2010, as the RO assigned a 100 percent evaluation for the Veteran's bilateral hearing loss effective on such date, and a TDIU is only available when "the schedular rating is less than total." See 38 C.F.R. § 4.16(a). Thus, the VA examiner must consider the effect of the Veteran's service-connected disabilities on his ability to work for the period prior to February 23, 2010. Additionally, clarification from the Veteran is needed with respect to his post-service employment history. As such, the Board finds that the RO must attempt to obtain a detailed, post-service work history from the Veteran. Finally, the Veteran must be notified of the criteria necessary to establish a claim for TDIU. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Thus, VA must provide the Veteran with a letter satisfying the duty to notify provisions with respect to the claim of entitlement to TDIU. Accordingly, the case is remanded for the following actions: 1. The RO must provide the Veteran appropriate notice with respect to the TDIU, that includes an explanation as to the information or evidence needed to substantiate a claim for a TDIU. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for TDIU, as well as his claim for an increased disability rating for his service-connected PTSD. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must attempt to obtain all VA treatment records from January 2010 to the present, as well as any private treatment records from L.S., the Veteran's neurologist. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. The RO must provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO, for the purpose of obtaining a detailed, post-service work history. 4. Upon completion of the above development, the Veteran must be afforded a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must comment upon the presence or absence, frequency, and severity of the Veteran's PTSD symptoms to include: affect; speech; panic attacks; ability to understand complex commands; short- and long-term memory; judgment; abstract thinking; motivation; mood; ability to establishing and maintaining effective work and social relationships; suicidal and/or homicidal ideations; obsessional rituals; ability to function independently, appropriately, or effectively; impulse control; neglect of personal appearance and hygiene; ability to adapt to stressful circumstances; delusions or hallucinations; general behavior; persistent danger of hurting self or others; ability to perform activities of daily living; and orientation. The examiner must attempt to distinguish symptomatology which is attributable to the Veteran's service-connected PTSD and that which is attributable to any other diagnosed psychiatric and/or neurological disorder, to include major depressive disorder and a cognitive disorder. Specifically, the examiner must address the Veteran's complaints of cognitive impairment, memory loss, anxiety, and sleep disturbance documented in his VA outpatient treatment records, as well as his private treatment records. If the examiner cannot ascribe particular symptoms to a specific diagnosis, this must be indicated. The examiner must also enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 5. A VA examiner must provide an opinion on the effects of the Veteran's service-connected PTSD and bilateral hearing loss on his ability to obtain and maintain employment consistent with his education and occupational experience, prior to February 23, 2010. The claims files and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims files and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, namely, PTSD and bilateral hearing loss precluded him from securing and following substantially gainful employment consistent with his education and occupational experience prior to February 23, 2010. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. In offering such opinion, the examiner must address the private treatment records from I.A.C.M., which include the physician's comment that the Veteran is "totally disabled" as a result of his medical conditions, to include his service- connected PTSD. The examiner must also address the March 2010 VA audiological examination report, which includes the examiner's comment that the Veteran was not able to work in tasks that require communication due to his service-connected bilateral hearing loss. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 6. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his 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 a 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. 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any issue on appeal 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. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).