Citation Nr: 1323744 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-29 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from August 2002 to September 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). In December 2011, the Board issued a decision which, in part, awarded an initial evaluation of 50 percent for PTSD. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims. In a July 2012 Order granting a Joint Motion for Partial Remand (JMR), the Court vacated that portion of the Board's decision which denied an initial rating greater than 50 percent for PTSD, and remanded the issue to the Board for additional reasons and bases. Additionally, although the RO denied a claim of entitlement to TDIU in a July 2012 rating decision (which the Veteran has not appealed), the Veteran raised the issue of entitlement to TDIU in a December 2009 statement as part of his claim for entitlement to an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but is best analyzed as a request for an appropriate disability rating, either as part of the initial adjudication of a claim, or as part of a claim for increased compensation). Accordingly, as the issue of entitlement to a TDIU is part and parcel of the Veteran's claim for an increased rating for PTSD, the Board has jurisdiction over that issue, and will address it herein. The issue of entitlement to service connection for a dental disability has been raised by the Veteran in a December 2009 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Pursuant to a July 2012 Court Order and JMR, the Veteran's claim for entitlement to an increased rating greater than 50 percent for PTSD was remanded to the Board. The JMR noted that, in its December 2011 decision, the Board failed to address all of the favorable evidence of record and failed to discuss the effects of the Veteran's PTSD on his occupational functioning. The JMR observed that the Veteran underwent a VA examination in October 2009 which reflected that he was attending college and had no problems with classes, but that in a December 2009 statement, the Veteran reported that he hated people, hated life, was no longer attending school, and was unemployed. As the Board did not address the December 2009 statement in its December 2011 decision, the Court found that the Board failed to address favorable evidence in the record. Because the Veteran submitted a statement in December 2009 reflecting that his PTSD symptoms had worsened since he was examined in October 2009, and because it has been over three years since the October 2009 VA examination, the Board believes that the Veteran should be provided with a new, more contemporaneous VA examination to ensure that the record reflects the current severity of the Veteran's PTSD. See 38 U.S.C.A. § 5103A (2002); 38 C.F.R. § 3.159 (2012); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The Board observes that a temporary file has been associated with the Veteran's claims file which reflects that he underwent a Review PTSD Disability Benefits Questionnaire in June 2012. Although the Questionnaire discusses some of the Veteran's PTSD symptoms and determined that a GAF score of 58 was appropriate, the June 2012 Questionnaire does not indicate that a mental status examination was performed, and does not contain the information necessary to properly rate the Veteran's disability under the pertinent rating criteria. Thus, the June 2012 Questionnaire is inadequate to properly rate the Veteran's PTSD under the pertinent rating criteria, and a new VA examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the Veteran's claim must be remanded for a new VA examination to determine the severity of his PTSD. With regard to the Veteran's claim for entitlement to a TDIU, this issue is inextricably intertwined with the issue of entitlement to an increased rating for PTSD. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Therefore, these issues must be adjudicated together. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a comprehensive VA psychiatric examination to determine the current severity of his PTSD. The claims file, all temporary claims files, and all electronic records must be made available to the examiner, and the examiner must specify in the report that the entire claims file has been reviewed. In reviewing the record, the examiner's attention is called to the Veteran's assertions, to include the impact that the Veteran's PTSD has on his ordinary activities and his employment; the prior VA treatment records; and prior VA examination reports. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms. The examiner must comment upon the presence or absence, and the frequency or severity of the following symptoms due to the service-connected PTSD: flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal person hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The examiner must also enter a complete multiaxial diagnosis, and assign a Global Assessment of Functioning score based solely on the PTSD, together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. 2. The Veteran should be scheduled for a VA general medical examination to determine whether the Veteran's service-connected disabilities, considered in combination, render him unemployable. The examiner must elicit from the Veteran and record for clinical purposes his full work and educational history. Based on a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, CONSIDERED IN COMBINATION, render him unable to obtain or retain substantially gainful employment consistent with his education and occupational experience, and irrespective of age and any nonservice-connected disorders. The opinion provided must include a complete rationale. If the examiner cannot provide the requested opinion(s) without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. Notify the Veteran that it is his responsibility to report for the scheduled VA examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice was sent to the Veteran's most recent address of record. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must readjudicate the issues on appeal. If any of the claims are denied, a supplemental statement of the case must be provided to the Veteran and his representative. The supplemental statement of the case must address whether the claim for an increased rating for PTSD and for entitlement to TDIU must be submitted to the Chief Benefits Director or the Director, VA Compensation and Pension Service for assignment of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also 38 C.F.R. § 4.16(b). After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).