Citation Nr: 1324797 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-27 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a disability of the right lower extremity (claimed as numbness in the right leg). 3. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1967 and from January 2004 to June 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a January 2010 rating decision, the RO granted service connection for PTSD. A 30 percent evaluation was assigned, effective September 14, 2009. In a June 2011 rating decision, the RO increased the rating for the Veteran's service-connected PTSD to 50 percent, effective September 14, 2009. This was not a full grant of the benefit sought on appeal and thus the Veteran's claim for an increased initial rating for PTSD remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In February 2011, the Board remanded the case to afford the Veteran a hearing before a member of the Board. The Veteran testified before the undersigned at an April 2011 Video Conference hearing. The hearing transcript is of record. The Board notes that at the time of the hearing, the Veteran submitted additional medical evidence (treatment records from the VA Medical Center in Columbia, South Carolina dated from January 2011 to April 2011), which has not yet been considered by the RO. He waived RO review of the evidence. However, as the claim is being remanded, the RO/Appeals Management Center (AMC) will have an opportunity to review the evidence before a final decision is rendered. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The current evidence of record does not show that the Veteran has deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to warrant a 70 percent rating for his service-connected PTSD. See October 2009 VA examination report, June 2010 VA examination report, and outpatient treatment records from the VA Medical Center in Columbia, South Carolina, dated from September 2009 to April 2011. In this regard, the evidence shows that the Veteran has impairment in judgment, in that he has consistently reported suicidal ideation, as well as impairment in mood, in that he has consistently endorsed symptoms of depression, hopelessness, worthlessness, and loss of energy, interest and motivation, and has been found on mental status examination to be depressed and to present with a constricted affect. However, he has also consistently reported that he has never actually attempted to act on his suicidal thoughts and he has denied homicidal thoughts. Furthermore, even with his noted depression, he has been able to perform activities of daily living independently. The evidence also shows that he has issues with impulse control, in that he has consistently reported irritability and anger. He also reported being arrested for domestic violence against his first wife several years ago. However, he has never reported any other episodes of violence against others, including his current wife of over 30 years. He has not reported any obsessional rituals or spatial disorientation, and although he has been noted to speak slowly, his speech has been otherwise normal. The Veteran has also been noted on VA examination to be dressed and groomed poorly, but there has been no indication that his hygiene was bad. Finally, although the Veteran claims that he was only able to maintain his employment for so many years because he worked in isolation, the record shows that he worked at the same company, prior to and after the military, for over 30 years, without being fired or being required to leave due to his PTSD. As noted, he has also been able to maintain a relationship with his second wife for over 30 years, and has reported having two adult children whom he sees approximately twice a week. Furthermore, the October 2009 VA examiner found that the Veteran had a moderate level of impairment in social and occupational functioning due to his PTSD. Accordingly, the Board finds that although he may have some difficulty in establishing and maintaining effective work and social relationships, he is not totally unable to do so. However, since his last VA examination in June 2010, the Veteran has reported that his PTSD symptomatology has increased. Specifically, during his April 2011 Video Conference hearing, he testified that he was continuing to experience irritability and anger, but also reported that his anger was causing him to have feelings of harming others, and that he had to isolate himself to prevent him from acting violently. He also testified that his suicidal thoughts had increased such that he was having them on a daily basis. The Veteran also reported that he was unable to work due to his PTSD and the medications he was taking to treat the disorder, and that any work he did do had to be in isolation because nobody wants to be around him for any length of time. He also testified that his relationship with his wife and family was deteriorating, and that he did not have much interaction with his children. See April 2011 Video Conference hearing transcript. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current level of severity of the Veteran's PTSD. The Board further notes that neither the claims file nor the Virtual VA eFolder contains any VA treatment records dated after April 2011. The Veteran reported during his hearing that he received psychiatric treatment every week. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the PTSD claim. The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As noted above, the Veteran has reported that his PTSD prevents him from working. Also as noted above, the October 2009 VA examiner concluded that the Veteran's PTSD caused him moderate impairment in occupational functioning, but he did not specifically indicate whether he believed the Veteran's PTSD prevented him from maintaining employment. Neither the June 2010 VA examiner nor the Veteran's treating VA physician has offered an opinion as to his ability to maintain gainful employment with consideration of his PTSD. Furthermore, neither VA examiner has considered the Veteran's recent reports of increased symptomatology during his April 2011 hearing. In the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. 38 U.S.C.A. § 5107(a); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). This opinion has not yet been obtained. TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Veteran does not currently meet the percentage requirements for TDIU under 38 C.F.R. § 4.16(a). A TDIU can be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b), but the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA's Director of Compensation and Pension for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The appellant is advised that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Under the Veterans Claims Assistance Act of 2000, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that he initially sustained an injury to his right foot and leg during his first period of active duty in Vietnam in January 1967, during a combat parachute jump. He has also reported that his condition was aggravated during his second period of active duty in Iraq from January 2004 to June 2005, because he was constantly walking and climbing hills, wearing heavy body armor, and carrying personal weapons. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to right leg pain or numbness or any other right leg condition, and no right leg disability was diagnosed at the time of his discharge. However, service records, including his Form DD-214 show that he received a Combat Infantryman Badge for his tour of duty in Vietnam. Thus, the Board finds that the circumstances and conditions of his service are consistent with his reports of a right leg injury in service. 38 U.S.C.A. § 5104(a). Outpatient treatment records from the VA Medical Center in Columbia, South Carolina show that the Veteran reported numbness and weakness in the right leg for twenty-five years. He also reported that the anterior right thigh, shin and dorsum of the right foot had been numb for more than two decades. He was diagnosed with paresthesias and weakness of the right leg. The Veteran has never been afforded a VA examination for his right leg condition. However, he was afforded a VA spine examination, in relation to another claim, in February 2010. He was diagnosed at that time with lumbar spondylosis and lumbar degenerative disk disease with imaging and clinical evidence of a bilateral lumbar radiculopathy, right greater than left. The examiner opined that the Veteran's back problems were not related to service. However, the examiner did not consider the Veteran's reports with regard to his right leg and foot injuries during active duty in Vietnam and Iraq, and he did not specifically give an opinion as to whether the Veteran's current right lower extremity disability was caused or aggravated during his active military service. Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). As such, the Board finds that another VA examination and medical opinion is needed to determine whether the Veteran has a current right lower extremity disability that was incurred or aggravated during his active military service. 38 U.S.C.A. § 5103A(d) (West 2002). The appellant is hereby notified that it is his responsibility to report for examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). The Board also notes that during his April 2011 Board hearing, the Veteran reported that he was receiving disability benefits from the Social Security Administration (SSA). There are no SSA records currently associated with the claims file. Where there has been a determination with regard to SSA benefits, any records concerning that decision that are relevant to the Veteran's claim must be obtained. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009); Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). The SSA records are relevant to the veteran's claim for service connection for a right leg disability because he has reported having problems with his right leg during service and since his discharge. Therefore, the SSA records may contain information related to the onset, nature and etiology of the Veteran's right leg problems. A remand is warranted so that VA may make reasonable efforts to obtain the SSA records. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning any claim made by the Veteran for disability benefits, including any medical records used to make the decision. 2. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD and his claimed right leg disorder, as well as his service-connected tinnitus and bilateral hearing loss. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should also obtain any outstanding VA medical records dated from April 2011 to the present. 3. Then, afford the Veteran a VA examination to determine the current level of impairment due to the service-connected PTSD. The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner should provide an opinion as to whether the Veteran's service-connected PTSD precludes him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Afford the Veteran a VA examination to determine the etiology of all current right lower extremity disorders. The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more ) that any right lower extremity disorder originated during either of the Veteran's periods of active duty (October 1964 to October 1967 or January 2004 to June 2005), or is otherwise etiologically related to service. The examiner should also provide an opinion as to whether any diagnosed right lower extremity disorder clearly and unmistakably existed prior to the Veteran's second period of active military service in Iraq (January 2005 to June 2005), and was clearly and unmistakably not aggravated during such service (i.e. there was no increase in underlying disability). A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. The examiner should specifically consider the Veteran's reports of injuring his right leg and foot during a parachute jump in Vietnam in 1967 and his reports of right leg symptoms from constantly walking and climbing hills, wearing heavy body armor, and carrying personal weapons from 2004-2005 in Iraq. The examiner is also advised that the lack of documentation of treatment for a right leg disorder in service is not a sufficient basis, alone, to make a determination that the Veteran did not have an onset of right leg symptoms in service. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. The Veteran should be provided an appropriate examination to determine whether all of his service-connected disabilities preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. 6. The RO/AMC should adjudicate the Veteran's claim for TDIU and readjudicate the remaining claims. If any benefit sought on appeal, to include TDIU, is not granted, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise 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). _________________________________________________ BARBARA B. COPELAND 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).