Citation Nr: 1323695 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-13 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), claimed as a respiratory disorder. 3. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from February 1965 to December 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. An October 2008 rating decision granted service connection and assigned an initial 10 percent rating for PTSD, effective December 28, 2007. That decision also denied claims for service connection for hypertension and for COPD. An April 2009 rating decision denied entitlement to a TDIU. A February 2010 rating decision granted a higher initial rating of 30 percent for PTSD, effective December 28, 2007. Although the RO has granted a higher initial rating for PTSD during the pendency of this appeal, as higher ratings are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for an initial higher rating for PTSD remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In December 2009, the Veteran and his wife testified during a hearing before RO personnel. A transcript of that hearing is associated with the claims file. In April 2011, the Veteran and his wife testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to service connection for Parkinson's disease, a skin disability, and heart disease, each claimed as secondary to Agent Orange exposure, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over those claims, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND With regard to the claim for an initial higher rating for PTSD, the Board notes that the Veteran has only been afforded an October 2008 VA examination, contemporaneous to his claim for service connection, more than four years ago. During the April 2011 Board hearing, the Veteran testified that his symptoms had increased in severity since his last VA examination. Therefore, to ensure that the record contains evidence showing the current severity of the Veteran's service-connected PTSD, a more contemporaneous examination is needed, with findings responsive to the applicable rating criteria. Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, the Board observes that the Veteran has not yet undergone a VA examination with respect to his TDIU claim. Thus, it remains unclear to the Board whether the current severity of the Veteran's service-connected disabilities, either separately or jointly, precludes him from working. The Board finds that, on remand, the Veteran should be afforded a VA examination and opinion to ascertain the impact of his service-connected disabilities, currently PTSD, tinnitus, and left ear hearing loss, on his unemployability. Moreover, if any additional disabilities are granted service connection while on remand, the impact of any additional service-connected disability on his unemployability should also be addressed. Friscia v. Brown, 7 Vet. App. 294 (1995) (VA has a duty to supplement the record by obtaining an examination that includes an opinion as to the effect of the Veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation). Prior to scheduling the above examination, all outstanding VA medical records dated from February 2010 to the present should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board also notes that the Veteran has been awarded disability benefits by the Social Security Administration (SSA). Records were obtained from SSA, but they were provided in the form of a compact disc. It appears that the records may be relevant to each of the issues on appeal. Therefore, a remand of all issues on appeal is warranted for the AOJ to print out the records from the disc and associate them with the claims file or the electronic claims file. During the April 2011 Board hearing, the Veteran testified that he was treated for hypertension about eight months after discharge from service, contemporaneous for treatment for tumors in his bladder. Therefore, on remand, the Veteran should be afforded an additional opportunity to provide VA with the identity of any outstanding treatment records and authorization to obtain them. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran to identify and provide VA with authorization, via a completed VA Form 21-4142, to obtain medical records from the doctor who diagnosed him eight months after discharge from service with hypertension. The Veteran should be advised that in the alternative, he may submit obtain the medical records and submit them. 2. Obtain all outstanding VA medical records dated from February 2010 to the present. 3. Print out the contents of the disc provided by SSA and associate the records with the claims file or electronic claims file. 4. After completing the above, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected PTSD. The examiner must review the claims file and must note that review in the report. All necessary tests and studies, to include psychological testing, should be accomplished and all clinical findings reported in detail. The examiner should render specific findings as to the extent and frequency of all psychiatric symptoms. The examiner also should render a full multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the veteran's psychiatric symptoms, and an explanation of what the score means. The examiner should also provide an assessment of the impact of the Veteran's psychiatric disability on his employability. 5. Then, schedule the Veteran for a VA examination for the purpose of ascertaining the cumulative impact of his service-connected disabilities. The examiner must review the claim file and must note that review in the examination report. The examiner should set forth all examination findings, with the complete rationale for all conclusions reached. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities, without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type of employment the Veteran would be capable of performing with his current service-connected disabilities, considering his current skills and educational background. The examiner should state what accommodations would be necessary due to the service-connected disabilities. The current service-connected disabilities are PTSD, tinnitus, and left ear hearing loss. The examiner should be advised if service-connection has been deemed warranted for any additional disabilities, and if so, the examiner should consider the impact of any additional service-connected disability on employability when providing the requested opinion. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts 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).