Citation Nr: 1320534 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-42 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1970 and from November 1972 to November 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the Veteran's claim for an increased rating. 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 Veteran's claims must be remanded for numerous reasons. First, the Veteran last underwent a VA examination in March 2008. Ordinarily, the passage of time alone does not trigger the need for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) ("Although evidence submitted between the date of the Regional Office's decision and the Board's review of that decision could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not."). Given the five year difference and the fact that the Veteran contended in a December 2010 letter that he suffers from symptoms more severe than those found in the VA examination, the need for a new examination has been triggered. Second, pursuant to 38 C.F.R. § 3.159(c)(2) (2012), VA has a duty to obtain records in the custody of a Federal department or agency, including VA treatment records. The most recent VA treatment records associated with the claims file here are dated from July 2009. Updated treatment records must be obtained before the Veteran's claims may be decided. Finally, a TDIU claim is part of an increased rating claim when it is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, given the result the descriptions of the Veteran's PTSD symptoms and the fact that he is not working, the Board finds that the issue of entitlement to a TDIU has been raised by the record. This claim must be remanded to allow for an opinion regarding the Veteran's employability. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice pursuant to the Veterans Claims Assistance Act (VCAA) of how a TDIU claim is substantiated and of his and VA's respective duties for obtaining evidence. 2. Obtain the Veteran's VA mental health treatment records dated from July 2009 from the Nashville VA Medical Center. 3. Schedule the Veteran for a VA mental health examination to determine the current severity of his PTSD and its impact on his social and occupational functioning. The claims file and electronic VA treatment records should be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported, to include a Global Assessment of Functioning score for his PTSD. Following review of the file and examination of the Veteran, the examiner should provide an opinion as to whether the Veteran's PTSD renders him unable to obtain or maintain gainful employment. A rationale for the opinion should be provided. 4. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit remains denied, issue an appropriate supplemental statement of the case, which includes relevant laws pertaining to a TDIU, and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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). 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). _________________________________________________ K. A. BANFIELD 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).