Citation Nr: 1326222 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-18 805A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a total disability rating claim based on individual unemployability (TDIU). 2. Entitlement to an increased disability rating for service-connected posttraumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970 and from November 1975 to October 1980. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. During the course of the appeal, jurisdiction over the Veteran's case was transferred to the Boise, Idaho, RO. In the July 2013 Appellant's Brief, the Veteran's representative asserted a claim to reopen the previously denied claims of entitlement to service connection for right knee disability and hypertension. He also asserted original claims of entitlement to service connection for bilateral hearing loss and coronary artery disease to include ischemic heart disease as well as a claim of entitlement to an increased rating for the Veteran's service-connected left knee disability. These matters have thus been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the claims on appeal - entitlement to TDIU and entitlement to an increased disability rating for service-connected PTSD - must be remanded for further development. A TDIU rating may generally be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). Additionally, a veteran may be entitled to TDIU on an extra-schedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disability. See 38 C.F.R. § 4.16(b) (2012). The Veteran is service connected for PTSD at 50 percent, degenerative joint disease (DJD) of the left knee at 20 percent, and malaria at zero percent. His combined disability rating is 60 percent. At present, he does not meet the criteria for schedular consideration of a TDIU rating as set forth in 38 C.F.R. § 4.16(a). In reviewing the evidence of record, the Board observes that at no time during this appeal has the Veteran been provided a VA examination that adequately discusses the cumulative effect of his service-connected disabilities on his ability to secure and follow substantially gainful employment. The Veteran was most recently afforded a VA examination as to his service-connected left knee disability in September 2009 at which time the examiner provided range-of-motion findings, but did not address the impact of the Veteran's service-connected left knee disability on his employability. The Veteran was also last afforded a VA examination as to his service-connected PTSD in September 2009. The VA examiner indicated that the Veteran has not worked since a logging accident in 1992 and "[h]e remains unable to work because he cannot stand for long periods, nor move very fast. Plus, at 61 years of age he doesn't think anyone would hire him anyway." Notably, the September 2009 VA examiner did not discuss the occupational impairment, if any, caused by the Veteran's service-connected PTSD. As stated by the Court in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), VA may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. Therefore, because the Board cannot adequately determine from the existing record how the Veteran's service-connected disabilities collectively affect his employability, the Board finds that the Veteran should be afforded VA examinations to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. In addition, a review of the record reveals a January 1993 Reconsideration Disability Report submitted by the Veteran to the Social Security Administration (SSA). As SSA records are potentially pertinent to his pending claims, particularly his claim of entitlement to TDIU, such records should therefore be obtained for consideration in connection with the issues on appeal. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Lastly, review of the record reflects ongoing VA medical treatment. To this end, the Board recognizes that VA treatment records dated through June 2012 have been added to the Veteran's Virtual claims file. However, review demonstrates that these records primarily pertain to a gastrointestinal tumor. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Request from SSA the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim. 2. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dating from March 2010. All such available documents should be associated with the claims file. 3. Then, schedule the Veteran for a VA psychiatric examination to determine the nature and extent of his service-connected PTSD. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected PTSD. The results of any such testing and studies should be included in the examination report. The examiner should provide a detailed account of all manifestations of the service-connected PTSD found to be present. In addition, a Global Assessment of Functioning (GAF) score should be assigned, along with an explanation of the number assigned to the Veteran. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. A complete rationale should be given for all opinions and conclusions expressed. 4. Then, schedule the Veteran for a VA examination to determine the level of the disability caused by his service-connected disabilities and whether these disabilities render him unable to secure and follow a substantially gainful occupation. The claims file must be made available to the examiner for review. The examiner should specifically state whether the Veteran's service-connected disabilities, without regard to his age or the impact of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. In rendering the opinion, consideration should be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. The claims file and a copy of this remand must be made available to the examiner. The examiner is directed to conduct all necessary testing and report all findings in detail. A complete rationale should be given for all opinions and conclusions expressed. 5. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).