Citation Nr: 1321055 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 09-35 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from May 1968 to June 1971, to include duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The entire claims folder, to include the portion contained in the electronic "Virtual VA" system, has been reviewed. 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 in this case was awarded service-connected compensation benefits for PTSD with major depressive disorder as a result of his combat exposure in Vietnam. At the time of the grant, in October 2008, a 30 percent evaluation was assigned. The Veteran has posited disagreement with this rating and contends, in essence, that his service-connected disability picture is more severe than what is contemplated in the 30 percent evaluation. It is his assertion that a higher level of compensation should be awarded. The Veteran has been examined by VA on two occasions, with a most recent examination having been afforded in October 2011. Since this time, the Veteran has stated that his disability has caused him to seek out additional treatment, and it is apparent that the Veteran was alleging that this treatment was afforded after the 2011 examination. Specifically, in a January 2012 submission to the RO, the Veteran stated that he had recently attended group therapy sessions at the Fresno VA Medical Center (VAMC) and that he remained in personal continual consultation with Dr. N, a psychiatrist with VA. The Veteran directed the RO to obtain additional and ongoing treatment records from VAMC Fresno, suggesting by implication that it was his belief that these records would demonstrate that his condition continues to deteriorate and is more severe than what was shown at the last examination. The Board has searched the claims file, to include the portion contained in the electronic "Virtual VA" system, and while there is evidence of private consultations with Dr. N in the time proximate to the Veteran's submission, there are no reports of group therapy at VAMC Fresno. Further, the most recent records from Dr. N are dated in January 2012, which is well over a year ago. Given this, the Board is not satisfied that it has a complete record of the Veteran's mental health treatment at VAMC Fresno, and accordingly, that it does not currently have the most accurate assessment of the disability picture of record. Records held in federal custody are deemed, constructively, to be part of the record, even if they are not physically present in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As VA has been put on notice that additional treatment records exist for the Veteran which are potentially relevant to his claim for an increase, efforts must be made to secure these records prior to an adjudication being made. In addition to securing the required records, the Board notes that there is a potential evidentiary conflict with regard to the severity of the Veteran's PTSD with depression. Indeed, while the October 2011 VA examination report indicates that the Veteran's PTSD has been stable in nature over the last several years, a February 2010 clinical notation by Dr. N (the aforementioned treating psychiatrist) listed the Veteran's "combat-related PTSD" as "warrant[ing] a high SC%." The associated clinical report noted a Global Assessment of Functioning (GAF) score that was roughly 10 points lower than that noted in the October 2011 assessment, and Dr. N reported that the PTSD was "severe." While the entire extent of the occupational and social functioning limitations associated with PTSD/depression were not fully described, it does present an assessment of the disability picture that is different than what was assessed in the subsequent VA examination. Also, the Veteran submitted a clinical note from Dr. N, dated in September 2011, which stated that the Veteran's disability is severe and that he is unemployable. No further elaboration on this conclusion was made. Given this, and given that there are outstanding VA group therapy and ongoing psychiatric consultations which have not been considered by a VA examiner, the Board is of the opinion that a new, comprehensive VA examination would be beneficial to determine the current severity of service-connected PTSD with major depressive disorder. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Hyder v. Derwinski, 1 Vet. App. 221 (1991). Such an examination should also consider as to if the Veteran's PTSD renders him incapable of gaining any type of substantially gainful (i.e. not marginal) employment. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that a request for a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In this regard, the Board notes that the Veteran has, in the context of his claim for a higher rating, alleged that his PTSD with depression is so severe as to make him unemployable. Indeed, the September 2011 submission by the Veteran's VA psychiatrist, while not containing much of a rationale to support the conclusion, did raise the issue of the Veteran being unemployable as due to his PTSD. As of yet, it does not appear as though the Veteran has been provided the appropriate notice as to how to substantiate the TDIU portion of his claim, and upon remand, such a notice should be provided. Following the allotted time for the Veteran to submit evidence, a decision should be issued with respect to the TDIU portion of the claim. Should it not be allowed, an appropriate supplemental statement of the case should be issued and the claim should be forwarded to the Board. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran of what is necessary to substantiate the TDIU portion of his claim for a higher initial rating for service-connected PTSD with major depression. Allow the Veteran an appropriate amount of time to respond and to submit additional evidence (the Veteran is asked to clearly indicate if he is raising such a claim). 2. Locate group and individual mental health treatment records for the Veteran from VAMC Fresno from January 2012 to the present. Upon receipt of these records, associate copies with the claims file. Should no records exist after an exhaustive search, so annotate the record. 3. Schedule the Veteran for a comprehensive VA psychiatric examination for the purposes of determining the severity of service-connected PTSD with depression. In this regard, the examiner is asked to consider the reports of the Veteran's treating psychiatrist, Dr. N, who has assessed a condition of greater severity than what has been noted during previous examinations. The examiner should consider all clinical reports, to include the VA individual and group therapy records requested with this remand, and he/she should offer an opinion as to if the service-connected psychiatric disability prevents the Veteran from gaining and maintaining any type of substantially gainful employment. All necessary tests should be accomplished, and the examiner should support all conclusions with an associated rationale. 4. Following the above-directed development, re-adjudicate the Veteran's claim, to include the TDIU portion. Should the disposition be less than fully favorable, issue an appropriate supplemental statement of the case and forward the claim to the Board for adjudication. The appellant has the right to submit additional evidence and argument on the matter 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 J. CROWLEY 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).