Citation Nr: 1326100 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-15 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 10 percent for chronic daily headaches, muscle tension type. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active military service from June 1999 to October 1999, from February 2002 to June 2002, from September 2002 to July 2003, and from October 2005 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In an April 2011, the RO issued a statement of the case and increased the rating of the Veteran's chronic daily headache disability to a 10 percent rating. A Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise; therefore, the Veteran's claim for an increased initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. A letter dated in April 2011, indicates that the Veteran received treatment at the Topeka VA Mental Health Clinic in October 2010; the Veteran's Topeka VA Mental Health Clinic treatment records after September 2009 have not been associated with his claims file. Upon remand, the RO is to obtain any pertinent VA and non-VA treatment records identified by the Veteran. The Board observes that the Veteran was last afforded a VA examination specifically for his service-connected PTSD and chronic headache disabilities in October 2009. The Board finds that the record, as it currently stands, does not adequately reveal the present state of the Veteran's PTSD or chronic headache disability as the examinations are nearly four years old. The Board finds, therefore, that a remand of these increased initial rating claims is necessary to secure examinations to ascertain the current level of these disabilities. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). A total disability rating based on individual unemployability (TDIU) is also a component of a claim for a higher initial or increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be granted when a Veteran's service-connected disabilities are rated less than total, but 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. 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). A TDIU claim is not raised unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Veteran has raised the issue of TDIU. He is service-connected for PTSD, a chronic headache disability, tinnitus, and left ulnar compressive sensory neuropathy, he has made a claim for the highest rating possible, and he has submitted evidence of unemployability. The Veteran has asserted that his headaches prevent him from sustaining full-time employment because his disability requires frequent days off. The Veteran also stated that he has difficulties at school because his headaches cause him to miss classes. The Veteran asserts that his PTSD makes it difficult for him to be around people, that he suffers from chronic fatigue, and that he has moments of overwhelming anxiety. See November 2010 Notice of Disagreement; see also June 2011 Veteran's Statement; see also April 2011 Dr. B. G. Letter. The Board finds that a medical opinion as to whether the Veteran's service-connected disabilities preclude substantially gainful employment is necessary. On remand, the RO should ensure that the VA examiner provides an opinion as to the effects of the Veteran's service-connected disabilities on his ability to sustain substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him for the names of all VA and non-VA treatment providers that the Veteran has seen for his service-connected PTSD and chronic headache disability since September 2009. 2. After obtaining the appropriate release of information forms where necessary, procure the post-service records of treatment for PTSD and chronic headache disability treatment that the Veteran has recently received. The Board is specifically interested in the treatment records from the Topeka VA Mental Health Clinic and any records available since the Veteran's October 2009 VA examinations. All such available reports should be associated with the claims folder. 3. Upon completion of the above development, the Veteran should be afforded an examination, at the nearest VA facility, in order to determine the current severity of his service-connected PTSD and service-connected chronic headache disabilities. Please note the Veteran's address has changed. The claims folder, with a copy of this remand, must be made available to the examiner for review in conjunction with the examination. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify and describe the symptomatology attributable to the Veteran's service-connected disabilities. The results of any tests or studies must be included in the examination report. The examiner should also conduct a comprehensive longitudinal review of the evidence of record, including the Veteran's statements, for the period from August 2009 (date of receipt of his claims for service connection for PTSD and chronic headache disability) to the present and opine on the level of the Veteran's occupational and social impairment throughout. The report of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner must also comment on the extent to which the Veteran's service-connected disabilities affect occupational and social functioning and his ability to obtain and maintain substantially gainful employment. A complete rationale should be given for all opinions and conclusions expressed. 3. Then, readjudicate the issues on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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). _________________________________________________ MICHAEL MARTIN 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).