Citation Nr: 1325031 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-00 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, the appellant in this case, had active service from March 1961 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Louisville, Kentucky, Regional Office (RO), which assigned a 10 percent rating to the bilateral hearing loss, denied entitlement to increased ratings for post traumatic stress disorder (PTSD), degenerative joint disease of the right elbow, and bilateral hearing loss, and denied a TDIU. In August 2009, the Veteran filed a timely notice of disagreement for the issues of entitlement to increased rating for PTSD, increased rating for right elbow disability, and TDIU. The RO interpreted this as a notice of disagreement for all issues decided in the July 2009 rating decision. A statement of the case was issued for the four issues in December 2009. Subsequently, in January 2010, the Veteran only filed a substantive appeal for the issue of entitlement to TDIU. For this reason, the TDIU issue is the only issue on appellate review before the Board at this time. The Veteran did not file a substantive appeal for the issues of entitlement to increased ratings for PTSD, a right elbow disability, and bilateral hearing loss; therefore, these issues were not appealed, are not certified for appeal, and are not before the Board for appellate consideration. See 38 C.F.R. § 20.200 (2012). The issues of entitlement to increased ratings for PTSD, a right elbow disability, and bilateral hearing loss were raised in the June 2013 statement by DAV, the Veteran's representative. To the extent the representative's statement may be construed as a new claim for increase, such newly raised issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and these issues are referred to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND There is evidence suggesting that the service-connected PTSD may cause unemployability. Specifically, the September 2008 VA psychiatric examination report indicates that the examiner opined that the Veteran had total and social occupational impairment due to the PTSD. The examiner stated that the Veteran continued to have nightmares and flashbacks, he had difficulty functioning in society, and he would often go homeless. The Global Assessment of Functioning (GAF) score assigned to the PTSD was 45 which is indicative of serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV). The examiner stated that the Veteran has had difficulty maintaining employment due to his temper, impulse control, and drinking. The May 2009 VA psychiatric examination report indicates that the Axis I diagnoses were PTSD, depressive disorder not otherwise specified, and alcohol dependence. The examiner assigned a GAF score of 50 which is indicative of serious impairment in social and occupational functioning and an inability to hold a job. The VA examiner stated that it was not possible to assign individual GAF scores for each diagnosis. The examiner indicated that the Veteran endorsed depressive symptoms and it was difficult to determine if these symptoms are related to the PTSD or a consequence of his decades long use of alcohol to self medicate. The examiner opined that the Veteran had deficiencies in most areas including thinking, family relations, work, and mood. The examiner stated that, given the Veteran's intrusive thoughts, problems with concentration, and irritability, he would have some difficulty maintaining employment in a competitive work environment. In this case, the Veteran's service-connected disabilities include PTSD rated at 50 percent, degenerative joint disease of the right elbow rated at 10 percent, and bilateral hearing loss rated at 10 percent, and tinnitus rated at 10 percent, with a combined total rating of 60 percent from September 30, 2008. The combined rating percentage criteria for TDIU consideration under 38 C.F.R. § 4.16(a) (2012) are not met. At present, the Veteran does not meet the combined rating requirements under 38 C.F.R. § 4.16(a) (2012) for consideration of a TDIU. However, a TDIU may be considered alternatively on under § 4.16(b), even though the combine rating percentages under 38 C.F.R. § 4.16(a) are not met if the evidence demonstrates inability to obtain or maintain substantially gainful employment due to service-connected disabilities. The Board is precluded from granting a TDIU on an extra-schedular basis in the first instance, and must refer the matter to the VA Under Secretary for Benefits or to the Director of Compensation and Pension Service for this initial adjudication. See 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of the Compensation and Pension Service or designee determines that an extra-schedular TDIU is not warranted does the Board then have jurisdiction to decide the extra-schedular claim on its merits. Thus, in the present case, because there is evidence that the Veteran maybe unemployable due to service-connected disabilities that include PTSD, the issue of entitlement to a TDIU is being referred to the Director of the Compensation and Pension Service for the initial adjudication. The RO should conduct a search for any outstanding VA treatment records from the VA Healthcare System showing treatment of the service-connected disabilities dated from January 2010. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1) (West 2002). The RO should also appropriately contact the Veteran by letter and request that he provide sufficient information and, if necessary, authorization to enable the RO to obtain any pertinent VA or non-VA clinical records that may substantiate his claim for TDIU. The RO should make an attempt to obtain copies any treatment records from a treatment source identified by the Veteran. Accordingly, the issue of TDIU is REMANDED for the following action: 1. Obtain the copies of all clinical records from the VA Healthcare System showing treatment of the service-connected disabilities from January 2010. 2. After all necessary development is accomplished, adjudicate the issues of entitlement to increased ratings for PTSD, a right elbow disability, and bilateral hearing loss. 3. After all necessary development is accomplished, readjudicate the claim for TDIU in light of all the evidence of record. If the criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) are not met, then the issue of TDIU should be referred to the Director of the Compensation and Pension Service for TDIU adjudication pursuant to 38 C.F.R. § 4.16(b). If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and representative, and they should be afforded a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. PARKER 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).