Citation Nr: 1323596 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-12 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty for training from January to July 1963, and on active duty from December 1964 to May 1969. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for PTSD and assigned an initial 30 percent disability rating effective January 12, 1995. Before the matter was certified to the Board, in a December 2009 rating decision, the RO increased the rating for PTSD to 50 percent effective October 8, 2009. In an August 2011 decision, the Board granted an initial 50 percent disability rating for the period from January 12, 1995, to October 8, 2009. The Board denied a rating in excess of 50 percent for any period of the claim. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 memorandum decision, the Court vacated the Board's August 2011 decision and remanded the matter for readjudication. In May 2013, the appellant submitted additional evidence directly to the Board, consisting of an April 2013 private psychological evaluation, along with a written waiver of initial RO review of this evidence. At that time, the appellant also raised a claim of entitlement to a total rating based on individual unemployability due to his service-connected PTSD. The Court has held that a claim for a total rating based on individual unemployability, either expressly raised by the appellant or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In view of the Court's holding, the Board has recharacterized the issue on appeal as set forth on the cover page above. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND As set forth above, in May 2013, the appellant raised the issue of entitlement to a total rating based on individual unemployability due to his service-connected PTSD. A review of the record indicates that in 1993, after reportedly serving as a policeman for 23-years, the appellant began working as a correctional officer. Although he has apparently remained employed full-time as a correctional officer, he contends that he is nonetheless entitled to TDIU because his current work situation is a "sheltered work environment" as his employer makes special allowances for his PTSD. A review of the record indicates that the RO has not yet had the opportunity to develop and consider the appellant's entitlement to TDIU in the first instance. To avoid the possibility to prejudice, a remand is therefore necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In addition, the record on appeal appears to be incomplete. For example, during his April 2013 private psychological evaluation, the appellant reported that he had received "considerable outpatient treatment through different VA clinics" and was currently under treatment for his service-connected PTSD at the VA Medical Center (VAMC) in Hampton, Virginia. The record on appeal, however, contains only limited VA clinical records, the most recent of which are dated in October 2006. To ensure that the record on appeal is complete, additional evidentiary development is necessary. The Board also notes that additional evidentiary development is necessary in connection with the appellant's recent contentions to the effect that his current employment situation is marginal as he works in a protected environment. See 38 C.F.R. § 4.16(a). Finally, the Board notes that the appellant was last examined for VA compensation purposes in October 2009. Given his contentions, the Board finds that a more recent VA psychiatric examination is necessary in order to evaluate the current severity of the appellant's service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. The RO should undertake appropriate notice and development actions in connection with the appellant's recent claim for a total rating based on individual unemployability due to service-connected disability, to include seeking to obtain information from the appellant's current employer regarding the nature of the special accommodations he reportedly receives for his service-connected PTSD. Appellant's assistance in obtaining this information is to be requested as needed. 2. The RO should also ask the appellant to specifically identify all sources of treatment for his service-connected PTSD since January 1995. Regardless of the appellant's response, the RO should seek to obtain clinical records from the VAMC in Hampton, Virginia, for the period from January 1995 to the present. 3. The appellant should then be afforded a VA psychiatric examination to determine the severity of his service-connected PTSD. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA, the examiner must address the severity of the appellant's service-connected PTSD. The examiner must also opine whether it is at least as likely as not that the appellant's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. A complete rationale must be provided for any opinion offered. His overall functional impairment should be detailed. 4. Thereafter, the RO must review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After undertaking any additional development deemed necessary, the RO should readjudicate claim, considering all of the evidence of record. If any benefit sought on appeal remains denied, the appellant and his attorney should be provided with a supplemental statement of the case and given the opportunity to respond. The RO is advised that the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is already in appellate status in light of the decision in Rice. The case should then be returned to the Board, if in order. 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 D. LYON 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).