Citation Nr: 1325261 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-03 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to August 13, 2012 and in excess of 30 percent therefrom. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1966 to October 1969, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for PTSD and assigned a disability rating of 10 percent. A subsequent rating decision in October 2012 granted a 30 percent disability rating effective August 2012. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher disability rating remains on appeal with respect to both rating periods. In March 2013, the Veteran appeared at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. 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 Veteran seeks an increased disability rating for his PTSD. At his Board hearing in March 2013, he asserted that his disability had worsened since his most recent examination in August 2012. He specifically identified symptoms which apparently were not considered to be present at the August 2012 examination. Because the degree of current disability is the issue on appeal before the Board, a remand for an additional VA examination is required. In addition, the Veteran has specifically asserted that his service-connected disabilities, especially his PTSD, were the reason for his retirement from the US Postal Service in 2003. As he has raised the issue of whether he is unable to obtain and retain substantially gainful employment as a result of his disabilities, the issue of entitlement to TDIU is incorporated in the current increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA psychiatric examination to determine the current nature and severity of his PTSD symptoms. The examiner is asked to review the reports of examination in February 2009 and August 2012, along with the Veteran's hearing testimony from May 2013 and discuss if these reflect a progression of symptoms and a change in the severity of the disability. The examiner should provide the rationale for any opinions rendered. A copy of the claims file - to include the transcript of the hearing - should be provided to the examiner for review. 2. Afford the Veteran an appropriate VA examination to determine whether any of his current service-connected disabilities, considered individually or in combination, to include the effects of any medication prescribed for such disabilities, renders him unable to obtain and retain substantial gainful employment. The examiner is advised that the Veteran's service-connected disabilities are as follows: PTSD with alcohol abuse, rated as 10 percent disabling prior to August 2012 and 30 percent disabling thereafter; carpal tunnel syndrome of the right wrist (non-dominant), rated as 20 percent disabling; residuals of injury of right radial corporal joint with degenerative changes, rated as 10 percent disabling; residuals of fracture of left ulnar styloid, rated as 0 percent disabling prior to November 2000 and 10 percent disabling thereafter; and, carpal tunnel syndrome, left wrist (dominant), rated as 10 percent disabling. The examiner is advised that, while the Veteran retired from the US Postal Service in 2003, he asserts that his decision to retire was due in large part to his symptoms and the side-effects of his medication used to treat his service-connected disabilities. 3. The RO should also undertake any other indicated development suggested by the development ordered above, to include referring the matter for consideration of entitlement to TDIU on an extraschedular basis. 4. On completion of the foregoing, the claim should be adjudicated, to include addressing the question of TDIU on an extraschedular basis. If any aspect of the decision remains adverse to the Veteran, then provide him 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 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). _________________________________________________ Eric S. Leboff 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).