Citation Nr: 1322717 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-00 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of cancer at the base of the tongue, claimed as due to herbicide exposure. 2. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), currently rated at 30 percent disabling. 3. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and J. S. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1966 to June 1969. He was awarded the Combat Action Ribbon, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in September 2008. A statement of the case was issued in November 2009, and a substantive appeal was received in January 2010. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in November 2012. In the August 2008 rating decision, the RO granted service connection for PTSD and assigned a 10 percent disability rating, effective July 2, 2007. The Veteran appealed the initial disability rating assigned. By rating decision in November 2009, the RO assigned a 30 percent disability rating, also effective July 2, 2007. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for residuals of cancer at the base of the throat (a type of squamous cell carcinoma). The Veteran asserts that his cancer is the result of his active duty service, to include exposure to herbicides. The Veteran served in Vietnam from May 1968 to June 1969. Agent Orange exposure is presumed. The Board notes that cancer at the base of the throat is not a disease associated with exposure to herbicide agents as listed in the presumptive service connection provisions of 38 C.F.R. § 3.307, 3.309(e). However, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, the Board notes the Veteran has not been afforded a VA examination in connection with his claim for residuals of cancer at the base of the throat. Under 38 C.F.R. § 3.159 and McLendon v. Nicholson, 20 Vet. App. 79 (2006), it is arguable that an examination and opinion is necessary under the circumstances of this case. Additionally, the Veteran seeks an increased disability rating for his service-connected PTSD. The Veteran reports his PTSD symptoms have worsened since his last examination. At the November 2012 hearing, the Veteran testified of worsening symptoms, such as depression, sleeplessness, irritability, anxiety, and social isolation. Most notably, the Veteran testified that since the March 2011 VA examination, due to his PTSD he was forced to resign from employment. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Furthermore, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a 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. At the November 2012 hearing, the Veteran testified that due to his PTSD symptoms, specifically his anxiety and fear, he was forced to resign. The Veteran is currently unemployed. In the present case, pursuant to Rice, the Board does find an indication in the record that reasonably raised a claim of entitlement to a TDIU. Further, the Veteran testified and the record reflects, that the Veteran continues to receive treatment for his PTSD at a VA medical center. However, relevant VA treatment records, dated since September 2011, have not been associated with his file. VA is obligated to obtain and consider these records in adjudicating this appeal. 38 C.F.R. § 3.159(c)(2). Upon remand, the RO should obtain all relevant VA treatment records from September 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with a TDIU application form for his completion, and send him the appropriate notice letter notifying him and his representative of what is necessary to substantiate a claim for TDIU. 2. The RO must obtain copies of all relevant VA treatment records dated from September 2011 to the present. 3. The RO should then arrange for the Veteran to be examined by an appropriate examiner to determine the current severity of the Veteran's service-connected PTSD. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should specifically provide a full multi-axial diagnosis pursuant to DSM-IV, to include a GAF score. The examiner should discuss all impairments and/or symptoms caused by PTSD, and state the impact that these impairments and/or symptoms have on his ability to work. A detailed rationale for all opinions expressed should be provided. 4. The Veteran should be scheduled for an appropriate examination to evaluate the etiology of his cancer at the base of the tongue. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to the following: Is it at least as likely as not (a 50 percent or higher degree of probability) that the cancer at the base of tongue is causally related to the Veteran's service, to include herbicide exposure? A detailed rationale for all opinions expressed should be provided. 5. In the interest of avoiding future remand, the RO should then review the examination reports to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 6. Thereafter, the RO should review the expanded record and adjudicate the increased rating for PTSD issue, the service connection for residuals of cancer at the base of the tongue, and entitlement to TDIU. The Veteran and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). 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). _________________________________________________ ALAN S. PEEVY 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).