Citation Nr: 1324616 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-33 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from July 1965 to July 1968 and from November 1970 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, wherein the RO granted service connection for PTSD and assigned an initial rating of 10 percent, effective February 6, 2009. In March 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) and a copy of the transcript of the hearing has been associated with the claims folder. The United States Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the initial adjudication of a claim or as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). If the claimant or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. During his video conference hearing, the Veteran stated that he was currently unemployed and indicated that he had to quit his last job due to his service-connected PTSD. The Board finds that the record reasonably raises the issue of entitlement to a TDIU. Therefore, the issue has been listed on the title page. 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 During the March 2011 video conference hearing, the Veteran reported that he receives current VA treatment for his service-connected PTSD. The most recent VA treatment records are dated in July 2010. Therefore, VA treatment records dated from July 2010 to the present should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). In addition, the Veteran should be afforded a new VA examination with respect to his service-connected PTSD. During the March 2011 video conference hearing, the Veteran testified that he experienced symptoms to include wanting to hurt others, experiencing suicidal thoughts, and that he had no friends. The Veteran was last afforded a VA examination in May 2009, more than three years ago. The Board finds that the evidence, to include the Veteran's testimony, indicates that the Veteran's service-connected PTSD has worsened since his last VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In this respect, the Veteran reported symptoms during his hearing that were not reported during the May 2009 VA examination. Further, the May 2009 VA examiner assigned a Global and Assessment Functioning (GAF) score of 65, indicating mild symptoms and impairment. The subsequent VA treatment records dated in March 2010 reveal a GAF score of 50, indicating serious symptoms or a serious impairment in social, occupational, or school functioning. Thus, the Veteran should be afforded a new and contemporaneous VA examination to determine the current nature and severity of his service-connected PTSD. Finally, as noted in the Introduction, the record raises a claim for entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that a TDIU issue is not fully developed for appellate review. Upon remand, the Veteran should be provided a notice letter and an application for a TDIU (VA Form 21-8940). In addition, the AMC/RO may decide to pursue further development of the Veteran's employment and educational history, or to obtain additional evidence, as is deemed necessary to develop the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter with respect to the issue of entitlement to a TDIU and a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Complete any additional development necessary to adjudicate a claim for TDIU, to include collecting and verifying information concerning the Veteran's educational and occupational history. 2. Obtain all VA treatment records for the Veteran from the Central Arkansas Health Care System, to include associated outpatient clinics, from July 2010 to the present. If requests for any treatment records are not successful, the AMC/RO should inform the Veteran and his representative of this so that they will have an opportunity to obtain and submit the records themselves. All attempts to obtain these records must be documented in the claims file. 3. Thereafter, schedule the Veteran for a VA examination to assess the nature and severity of the service-connected PTSD. The claims folder must be made available to the examiner for review in conjunction with the examination. All necessary testing should be accomplished, and the findings reported in detail. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. The examiner should provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability or greater) that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. When offering this opinion, the examiner should not consider the effects of any non-service connected disabilities or the Veteran's age. A complete rationale should be provided for any opinion reached. 4. After the above development is completed, readjudicate the claims on appeal, to include whether TDIU is warranted on an extraschedular basis. If the benefits sought remain denied, furnish the Veteran and his representative a supplemental statement of the case and 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ DENNIS CHIAPPETTA 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).