Citation Nr: 1325796 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-19 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified during a Board hearing, held by the undersigned, in August 2011. A copy of the hearing transcript (Transcript) has been associated with the record. Further, the Board notes that several times within the record, to include during his Board hearing, the Veteran has alleged that his PTSD symptoms prohibit his ability to maintain gainful employment. See Transcript, p. 10. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that a claim for entitlement to TDIU is a rating theory and "not a separate claim for benefits." See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Bifurcation of a claim is generally a matter within VA discretion. Id. at 455, n. 7. The Board finds that the TDIU issue in this case involves complex medical issues and is appropriately addressed as a separate issue. 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 Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Here, service connection has been established for PTSD, which has been assigned an initial rating of 30 percent. During the Veteran's Board hearing in August 2011, the Veteran asserted that his symptoms were more severe than reflected by his current rating. He testified that his symptoms had worsened as of the prior week, when he saw a report of a helicopter that crashed. Specifically, anxiety had increased, as had his panic attacks. See Transcript, p. 4. He further noted that he had experienced an increase in symptoms since the time of his prior VA psychiatric examination in March 2010, and that his provider had increased his psychiatric medication over the prior six months. See Transcript, p. 8. Upon a review of the Virtual VA system, it is noted that psychiatric treatment reports through 2013, as well as a January 2013 VA psychiatric examination, have been added to the record, however, a supplemental statement of the case has not been issued by the RO considering this evidence. Due process requires that a supplemental statement of the case be issued that includes consideration of this evidence. See 38 C.F.R. § 19.31(b)(3) (2012). Thus, the RO/AMC must issue another supplemental statement of the case that specifically includes consideration of the January 2013 VA examination report, as well as any evidence that has been added to the claims file, or the Virtual VA electronic record, since the last supplemental statement of the case issued in April 2010. A remand is also warranted to adequately address the Veteran's TDIU claim. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). As noted above, the Veteran testified in August 2011 that his PTSD symptoms prohibit his ability to maintain gainful employment. See Transcript, p. 10. The record also contains several lay statements, from the Veteran's spouse, fellow servicemen, friends, and former employers, attesting to his inability to maintain employment, noting such symptoms as the inability to focus, anger, and a lack of compassion toward those who worked under him. During his most recent VA psychiatric examination, it was noted that his PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity. However, the examiner did not opine as to whether as a result of his service-connected disabilities, taken in the aggregate, the Veteran was unable to secure or follow a substantially gainful occupation. Currently, service connection is established for coronary artery disease (CAD) at 60 percent, PTSD at 30 percent, tinnitus at 10 percent, and hearing loss (non-compensably rated), for a combined rating of 70 percent. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). Because the Veteran claims he is unable to work due to his service-connected disabilities, the Board finds the Veteran should be requested to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, and provided a VA examination in conjunction with this issue. On remand, the Board directs the RO/AMC to obtain an additional VA psychiatric opinion to determine whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD, CAD, hearing loss, and tinnitus. The opinion should, to the extent possible, address all service-connected disabilities. Finally, and as noted previously, a January 2013 VA examination was conducted to assess the current severity of the Veteran's PTSD symptomatology. The Board is unclear as to whether this examination was ordered in response to a new claim by the Veteran, or prompted by the submission of additional treatment reports, etc. Should a separate/temporary file exist for the Veteran at the Winston-Salem RO, please associate those documents with the record. Accordingly, the case is REMANDED for the following actions: 1. Associate with the record any documents maintained in a separate or temporary file at the Winston-Salem RO. If such records do not exist, that fact should be noted in the record. 2. Send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, and request that he complete it in its entirety 3. Once the above actions have been completed, schedule and additional VA psychiatric examination to determine the current severity of his service-connected PTSD, and to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, consistent with his education and occupational experience. The claims folder must be made available to the examiner for review and the report must indicate whether such review was accomplished. The examiner is requested to render an opinion on the following: Without regard to the Veteran's age or the impact of any nonservice-connected disabilities, but with regard to his education level, it is at least as likely as not that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities alone are of such severity to result in unemployability. A rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Thereafter, readjudicate the increased rating claim and adjudicate the TDIU claim in the first instance. If either claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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). _________________________________________________ T. L. DOUGLAS Acting 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).