Citation Nr: 1319814 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-37 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to March 28, 2012, and in excess of 50 percent thereafter. 2. Entitlement to total disability based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from July to November 1971, November 1990 to June 1991, and from March 2003 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran appeared and testified at a videoconference hearing in April 2013 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. This appeal was previously before the Board in February 2013. The Board remanded the claim so that the Veteran could be scheduled for a requested Board hearing. The case has been returned to the Board for further appellate consideration. The issue of entitlement to an increased rating for hypertension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Unfortunately, a remand is required in regards to the Veteran's claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The Veteran's claim for an increased rating for PTSD prior to March 28, 2012, must be remained so that additional treatment records can be obtained. Currently, the record contains a March 2008 VA mental health treatment record which is noted to be his initial consultation. He denied prior psychiatric treatment at that time. He was referred for treatment due to complaints of restless nights and increasing memory loss. The record also contains July 2008 and March 2012 VA evaluation reports. During the April 2013 Board hearing, the Veteran testified that he had been receiving psychiatric care through the VA since 2006. Virtual VA does not currently contain any medical records. On remand, all outstanding VA psychiatric and counseling records, to include Vet Center records (if any) must be obtained. The Veteran's claim of an increased rating for PTSD from March 28, 2012, must be remanded for an additional VA evaluation. During the April 2013 Board hearing he stated that his PTSD symptoms had increased since his last VA evaluation, and he requested a new VA evaluation. He described symptoms of hypervigilence, easy startle response, nightmares, poor concentration, irritability, suicidal and homicidal thoughts, and isolation/fear of crowds. As such, the Veteran should be scheduled for a new VA evaluation to determine the current severity of his PTSD. Also during the April 2013 Board hearing, the Veteran initially indicated that he had been unemployed since 2008. The record shows that he was either terminated or was given early retirement from employment with a power company in 2008. He reported initially that his employment with the power company ended because he startled due to a loud noise at work, fell over, and nearly landed on a 7200-volt live wire. Due to this near-miss accident, the Veteran felt that he was let go because he was seen as a liability. During the April 2013 hearing, he stated that prior to this near-miss accident he performed his job well and "got along well" with his coworkers. As he has indicated a symptom of his PTSD may have caused his unemployment, an informal claim for TDIU was raised. Unfortunately, it is unclear from his testimony whether the Veteran remained unemployed after his termination in 2008. He stated he worked as a truck driver for two years from 2008 to 2010, and the 2012 VA examiner noted the Veteran was working as a "helper" in an electronics store. It is unclear if this employment is fulltime. In this case, a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, should be forwarded to the Veteran. Further, once the VA Form 21-8940 is received and former employers are identified, then VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, should be forwarded to the former employers listed on the form. Lastly, if the Veteran is unemployed, then he should be scheduled for a VA examination to determine if he is rendered unemployable due to his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran corrective VCAA notice which informs the Veteran of the evidence necessary to establish TDIU. 2. Forward a VA Form 21-8940 to the Veteran, and subsequently forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employers listed on the Veteran's submitted VA Form 21-8940. 3. Contact the Veteran and request that he identify any health care provider who has treated his PTSD. Thereafter, take appropriate action to secure any identified records. Specifically, the Appeals Management Center (AMC) should obtain any outstanding VA mental health treatment records, to include any Vet Center records. If the AMC cannot locate any records that have not been previously added to the claims file it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran must then be given an opportunity to respond. 3. Thereafter, the Veteran should be scheduled for a VA PTSD evaluation to ascertain the severity of his service-connected PTSD and to determine the effect of his service-connected PTSD on employability. The claims file should be made available to the examiner along with any pertinent records located in the Veteran's Virtual VA electronic claims file. Upon review of the record and evaluation of the Veteran, the evaluator should set forth all manifestations of the Veteran's service-connected PTSD and discuss the impact of such symptoms on the Veteran's social and occupational functioning. A Global Assessment of Functioning (GAF) score should be assigned, and the evaluator should explain the basis for such score. The evaluator should also provide a specific opinion as the social and/or occupational impairment caused by the Veteran's PTSD. 4. If the Veteran is unemployed and seeking TDIU, then he should be scheduled for any additional VA examinations needed to address whether it is at least as likely as not that service connected disorders alone render him unable to secure and maintain substantially gainful employment. Any examination conducted must describe any functional impairment and the impact of the service connected disorder on physical and sedentary employment. 5. Then, readjudicate the Veteran's claims. If the claims remain denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further 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). _________________________________________________ MICHAEL LANE 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).