Citation Nr: 1326003 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 06-28 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) prior to June 8, 2011, and in excess of 50 percent thereafter. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to June 8, 2011, and since February 3, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to a rating in excess of 30 percent for PTSD. An April 2009 rating decision also denied the Veteran's claim of entitlement to a TDIU. In January 2011, the Board remanded the issues for additional development. The file has now been returned to the Board for further consideration. By an October 2011 rating decision, the RO assigned the Veteran's PTSD a 50 percent rating, effective June 8, 2011. Also, by a November 2012 rating decision, the RO granted a TDIU, effective June 8, 2011, through February 2, 2012. As the 50 percent disability rating is less than the maximum available rating, and there remains periods of time during the appellate period during which the 50 percent rating and the TDIU were not in effect, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the Board's Central Office in Washington, D.C., and in May 2013, he testified via videoconference before the undersigned VLJ, seated again at the Board's Central Office in Washington, D.C. Transcripts of the hearings have been associated with the claims file. Review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, specifically, updated VA treatment records. 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 Review of the record indicates that the Veteran's last VA examination for his service-connected PTSD is dated in February 2012. Upon review, the Board finds that more a current examination is necessary to properly evaluate the severity of this condition. Specifically, at the time of his May 2013 Board hearing, the Veteran described symptoms seemingly more severe than those recorded at that time of the last VA examination. The Board also notes that at the May 2013 Board hearing, the Veteran described VA psychiatric treatment, to include phoning a suicide hotline at Fort Meade on a regular basis. Given that the most recent VA treatment records, considering both the physical claims file and Virtual VA, are dated in April 2012, a request for additional records must be made. There has been disagreement among VA examiners as to whether the Veteran's PTSD renders him unemployable. No examiner has rendered an opinion as to the effects of the Veteran's service-connected disabilities, singly and jointly, on his ability to secure or follow a substantially gainful occupation. A VA examiner, in June 2011, found that the Veteran's unemployability was caused by or the result of his PTSD symptoms. A VA examiner, in February 2012, found only occupational and social impairment with reduced reliability and productivity. A VA examiner, in November 2012, submitted an opinion based on review of the claims file that the June 2011 conclusions of the VA examiner were incorrect. On remand, subsequent to clinical evaluation of the current severity of the Veteran's PTSD, an opinion as to the impact of his service-connected disabilities on his employability should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Centers (VAMCs) in Fort Meade and Hot Springs, South Dakota. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his PTSD. The examiner should note all relevant pathology, and all indicated tests should be conducted. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the impact of his service-connected disabilities on his employability. The examiner should be notified that the Veteran is currently service-connected for PTSD, bilateral hearing loss, and disabilities of the bilateral knees, right hip, and right third rib. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities, both singly and jointly, on his employability. The examiner may not consider the Veteran's age or non-service-connected disabilities. The examiner is directed to consider the Veteran's award of disability benefits from the Social Security Administration (SSA), his employment history, and the lay statements of the Veteran's family members and employers, as well as those from the Veteran himself. The examiner should opine as to: (a) whether the Veteran's service-connected disabilities, without consideration of his age or non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation; and (b) if so, upon what date, approximately, the Veteran became unemployable. To this end, the examiner must give some indication as to whether any employment in which the Veteran may engage is only possible with special consideration or accommodation (i.e., just marginal employment versus substantially gainful employment). The claims file, including a copy of this Remand, should be made available to the examiner(s) for review in conjunction with the examination(s), and the examiner(s) should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner(s) should fully articulate a sound reasoning for all conclusions made. If the examiner(s) cannot answer the above questions without resorting to mere speculation, the examiner(s) should state why this is so. 4. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ K. PARAKKAL 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).