Citation Nr: 1324149 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-19 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran presented testimony before a hearing officer at the RO in August 2009. A transcript of that hearing was prepared and has been included in the claims folder for review. The Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation; there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case, in an April 2010 letter, the Veteran's treatment provider at the Trenton Vet Center noted that the Veteran was unemployable due to his PTSD. Accordingly, a claim for TDIU has been raised by the record. 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 Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last afforded an examination for his PTSD in September 2009. In an October 2009 VA progress note, the Veteran reported that his PTSD had been worsening. In a July 2013 written brief, the Veteran's representative also asserted worsening since the last VA examination. The United States Court of Appeals for Veterans Claims (Court) has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As the current level of disability is at issue, a contemporaneous examination of the Veteran's PTSD is necessary to accurately assess his disability picture. Additionally, the Board finds that, based on the Veteran's July 2013 statement and the April 2010 Vet Center treatment provider's letter, the issue of TDIU has been reasonably raised by the record. As noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to TDIU should be adjudicated by the RO in light of the Court's decision in Rice. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran is service connected for PTSD at 50 percent disabling, tinnitus at 10 percent disabling, and right ear hearing loss at noncompensable for a combined disability rating of 60 percent. The Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Services, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). The Board notes, parenthetically, the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular evaluation under 38 C.F.R. § 3.321(b) (1) and for purposes of a TDIU claim under 38 C.F.R. § 4.16. Kellar v. Brown, 6 Vet. App. 157, 162 (1994). Specifically, 38 C.F.R. § 4.16 does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). In addition, the record reflects that the Veteran has continued to receive treatment from the VA Medical Center (VAMC) and Trenton Vet Center. As this matter is being returned for additional development, any ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. The AMC should request the Veteran identify any outstanding private or VA treatment records relating to his PTSD and obtain all outstanding identified treatment records. All efforts to obtain the additional evidence must be documented in the claims folder. If the search for such records has negative results, documentation to that effect should be included in the claims files. 2. Next, the AMC should arrange for the Veteran to be examined by an appropriate examiner, who should comment on the severity of the Veteran's PTSD. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the examination. Any indicated tests and studies should be conducted and all findings should be reported in detail. The examiner should also provide an opinion concerning the impact of the PTSD on the Veteran's ability to work. The claims folder and this Remand must be made available to the examiner for review prior to the examination. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. It is requested that the results of the examination be typed and included in the claims folder for review. 3. The AMC also should undertake any other development it determines to be warranted before the Veteran's claim for a TDIU is decided, including referral of the claim to the Director, Compensation and Pension Services, for extra-schedular consideration. 4. Thereafter, the AMC should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The RO/AMC is reminded that it must make a determination as to whether an extraschedular evaluation for the Veteran's service-connected PTSD may be assigned. The AMC must fully discuss why, or why not, it is sending the claim to the Director, VA Compensation and Pension. An appropriate period of time should be allowed for response. Thereafter, the case should 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). _________________________________________________ DAVID L. WIGHT 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).