Citation Nr: 1324286 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-42 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES Entitlement to an increased evaluation for post traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from October 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, that continued the Veteran's evaluation for his service connected PTSD at a 50 percent evaluation. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total evaluation based on unemployability due to service-connected disabilities (TDIU) is part and parcel of an increased rating claim when such claim is raised by the record. In this case, as noted above however, the Veteran's representative filed an actual claim for unemployability in a June 2011 statement, and such claim was denied in July 2011 rating decision. The Board notes that a "traditional" TDIU claim considers whether a Veteran is unemployable due to any service-connected disabilities, alone or in concert. In contrast, a Rice-type TDIU claim is limited to whether the Veteran is unemployable due to the service-connected disability on appeal - in this case, the Veteran's service-connected PTSD. As such, a "traditional" TDIU claim is inclusive of a Rice-type TDIU claim. Therefore, the Board finds any consideration of a separate claim of TDIU related to the current claim in appellate status to be moot. 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 The Board notes that the appellant's representative, in a May 2013 brief, indicated that they felt the Veteran's most recent VA examination did not adequately address the current severity of the Veteran's PTSD. They also submitted a letter from the Veteran's local Vet Center showing that the Veteran was undergoing treatment at that facility. The Board notes that there does appear to be some confusion on the Veteran's representative's behalf, as they indicate that the Veteran's last VA examination was in March 2009, when instead it appears to be in June 2011. Nevertheless, as the representative has argued that the Veteran's symptomatology has increased, and has submitted evidence showing recent treatment, the Board finds that this issue should be remanded in order that all current relevant treatment records may be obtained and associated with the Veteran's claims file, and that the Veteran may be provided with a current examination that more accurately addresses the Veteran's current level of severity of his service connected PTSD. Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the Veteran and request that he provide the names and addresses of any health care providers who have recently treated him for PTSD since 2011. Contact any identified facility, including the VA facility in San Juan, Puerto Rico, and the Vet Center in Ponce, Puerto Rico, to obtain all of his available treatment records. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 2. After completion of the above requested development, and any other development deemed warranted by the record, schedule the Veteran for a VA examination for his service connected PTSD. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should note review of the file. The examiner should specifically note what, if any, level of social and occupational impairment the Veteran has related to this disability. The examiner should provide a GAF if possible, and indicate what, if any, impact this disability has on his employability. 3. After completion of the above requested development, and any other development deemed warranted by the record, the RO should adjudicate the claims on appeal in light of all pertinent evidence (to specifically include all that added to the record since the issuance of the last SSOC on the matters on appeal) and legal authority. The RO must provide adequate reasons and bases for its determinations. 4. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC), and afford them the opportunity to provide written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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).