Citation Nr: 1322063 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-10 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from November 1946 to April 1948 and September 1950 to May 1952. He is the recipient of the Purple Heart and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In that decision, the RO denied an increased rating for PTSD. In June 2009, the Veteran filed a claim for TDIU. In a November 2009 rating decision, the RO denied TDIU and the Veteran did not file a notice of disagreement with that decision. The Veteran testified in regard to the increased rating claim for PTSD during a November 2010 videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that proceeding is of record and has been associated with the claims file. In May 2013, the Veteran was advised that the VLJ who conducted the November 2010 hearing was no longer employed by the Board and was provided an opportunity to elect to have another hearing. However, in June 2013, he advised the Board that he did not wish to appear at a new hearing. This matter was previously before the Board in January 2011. At that time, the Board determined that, based on Rice v. Shinseki, 22 Vet. App. 124 (1996), the issue of entitlement to TDIU had been raised. The Board remanded the TDIU and PTSD claims for further development. In an April 2012 decision, the Board denied an increased rating for PTSD and entitlement to TDIU. The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision and remanded the claims to the Board for further proceedings consistent with the joint motion. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals additional VA treatment records. However, the agency of original jurisdiction (AOJ) has already reviewed those records, as documented in the March 2012 supplemental statement of the case. In June 2013, the Veteran's attorney submitted new medical evidence (a March 2013 report by vocational consultant E.J. Calandra) relevant to the Veteran's claims. However, the Veteran's attorney also waived AOJ consideration of the new evidence. As such, the Board can proceed with its consideration of the current claims. 38 C.F.R. § 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board notes that the Veteran has three service-connected disabilities, including (1) residuals of a shrapnel wound with well-healed scar, dorsal surface of right hand (with a 10 percent disability rating), (2) post-traumatic changes and osteoarthritis with painful motion, right hand (dominant) associated with residuals of shrapnel wound with well-healed scar, dorsal surface of right hand (with a 10 percent disability rating) and (3) PTSD (with a 50 percent disability rating). He has a combined rating of 60 percent. However, as all those injuries were incurred in action, they can be considered one disability for TDIU purposes. 38 C.F.R. § 4.16(a). In this regard, a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Therefore, the Veteran meets the schedular threshold for a TDIU. The last VA examination of record to address the increased rating claim for PTSD was the February 2011 VA examination. In his more recent statements, to vocational consultant E.J. Calandra, the Veteran appears to indicate that his service-connected PTSD is worse than previously indicated. As such, the Board will remand this matter to afford the Veteran an opportunity to undergo a contemporaneous VA examination to assess the current nature, extent and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). As relevant to the TDIU claim, the February 2011 VA examiner found that the Veteran retained the cognitive, emotional and behavioral capacity to do at least simple work tasks in a loosely supervised environment. The examiner noted that the Veteran performed activities of daily living satisfactorily and had been taking care of his wife and grandchildren. The examiner found the Veteran capable of work activity within physical limitations. In contrast, vocational consultant E. J. Calandra found that the Veteran would have difficulty finding work and function due to his service-connected PTSD and right hand disability. Mr. Calandra noted the Veteran's difficulty with memory as a factor in his reasoning. However, Mr. Calandra did not address an October 2009 VA examiner's finding that the Veteran's memory problems were due to either his age or a vitamin B12 deficiency. In this regard, the Court has held that, when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the Veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). In the instant case, while Mr. Calandra found that the Veteran's difficulty with memory was a factor in his unemployability, the October 2009 VA examiner dissociated such symptom from his PTSD. Rather, he attributed it to the Veteran's age or a vitamin B12 deficiency. Therefore, in connection with the Veteran's examination regarding his PTSD, an opinion regarding the relationship between the Veteran's memory impairment and such service-connected disability should be obtained. Moreover, in light of Mr. Calandra's opinion that the Veteran's service-connected disabilities rendered him unemployable, the Board finds that, after the Veteran undergoes his new VA examination for his PTSD, the AOJ should refer those findings and the claims file for an opinion regarding whether his service-connected disabilities (including the right hand disorders and PTSD), either singularly or jointly, render the Veteran unemployable. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Additionally, while on remand, the AOJ should obtain all outstanding VA treatment records regarding his service-connected disabilities, to include PTSD, dated from March 2012 to the present from the Colorado VA Healthcare System. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AOJ should obtain any outstanding VA medical records relevant to the Veteran's service-connected disabilities, to include his PTSD, from the VA Colorado Healthcare System dated from March 2012 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, the AOJ should afford the Veteran an appropriate VA examination to determine the current nature and severity of his PTSD. The claims file, to include a copy of this REMAND, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD. In this regard, the examiner should provide an opinion as to whether the Veteran's memory impairment is at least as likely as not related to his PTSD. In rendering such opinion, the examiner should discuss the October 2009 VA examiner's finding that the Veteran's memory problems were due to either his age or a vitamin B12 deficiency. The examiner should also specifically address the impact such disability has on the Veteran's employability. All opinions expressed should be accompanied by supporting rationale. 3. Upon completion of the foregoing, the claims file should be forwarded to an appropriate medical profession to offer an opinion as to whether the Veteran's service-connected disabilities render him unemployable. The claims file and a copy of this REMAND must be made available to the examiner, and the examiner shall indicate in the report that the claims file was reviewed. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion. Following a review of the record, the examiner should render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities (i.e., PTSD and right hand scar residuals and post-traumatic changes and osteoarthritis with painful motion), either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. In offering any opinion, the examiner should specifically discuss Mr. Calandra's June 2013 opinion that the Veteran's service-connected disabilities render him unemployable. All opinions offered should be accompanied by a rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ____________________________________________ A. JAEGER 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).