Citation Nr: 1326284 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-29 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from March 1961 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, granting service connection for PTSD and assigning a disability evaluation of 50 percent. 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 contends that he is entitled to an initial disability evaluation in excess of 50 percent for his service-connected PTSD, and, that he is entitled to TDIU benefits. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Regarding the Veteran's claim for a higher disability evaluation for his service-connected PTSD, the record reflects that the Veteran was last afforded a VA examination for this condition in June 2010. The Veteran has continued to allege that his PTSD is worse than originally rated and that he is unemployable as a result of this disability. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In the present case, it has been more than three years since the Veteran's last examination and he has continued to assert that the currently assigned disability rating is incorrect. As such, he should be afforded the opportunity to appear for a more recent examination before appellate review proceeds. As for the claim of entitlement to TDIU benefits, where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Presently, the Veteran is service-connected for PTSD (rated as 50 percent disabling) and diabetes mellitus type II (rated as 10 percent disabling), for a combined evaluation of 60 percent. As such, the Veteran does not meet the percentage requirements laid out in 38 C.F.R. § 4.16(a). However, if a higher rating is assigned for PTSD upon remand, than the Veteran may in fact meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). The Board, therefore, finds that the claim of entitlement to TDIU benefits is inextricably intertwined with the issue of entitlement to a higher initial disability evaluation for PTSD, since a grant of the benefits sought would result in an increased overall disability evaluation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Regardless of whether the Veteran's disability evaluation for PTSD is increased, however, his claim must still be considered on an extraschedular basis. Entitlement to a TDIU on an extraschedular basis may be considered by the Director of the Compensation and Pension Service when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. According to the June 2010 VA examination report, the Veteran was "in a good deal of distress and unable to work at this time." When there is plausible evidence that a Veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, a Veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Compensation Director. Based on the evidence discussed above, the Board finds that it is clear that such referral is warranted in this case. At this point, the Board will not make a decision regarding the claim for TDIU under 38 C.F.R. § 4.16(b), as this is impermissible based upon the governing regulations and case law. See Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board finds that this matter should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be contacted and asked to identify any additional treatment he has received for his PTSD since the July 2010 rating decision. He should be asked to provide VA with signed consent forms to obtain any identified records. If any records are identified, the RO/AMC should undertake all reasonable efforts to obtain these records. If the records cannot be obtained, the Veteran should be notified of this fact in writing and given an opportunity to submit any additional evidence himself. 2. After completion of the above, the Veteran should be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected PTSD. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination and the examination report should reflect review of these items. All indicated tests and studies should be performed, and the examiner is asked to describe in detail all symptomatology associated with the Veteran's service-connected PTSD. The Veteran's lay statements regarding the severity of his symptomatology should also be considered and discussed. Finally, the examiner is asked to opine as to whether the Veteran's PTSD renders him unable to obtain or maintain substantially gainful employment. A complete rationale must be provided for all opinions offered. 3. If the Veteran continues to not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a), the RO/AMC should submit this claim under 38 C.F.R. § 4.16(b) to the Director, Compensation Service, for extraschedular consideration. The RO/AMC is advised to follow the procedures outlined in 38 C.F.R. § 4.16(b) governing referral of TDIU claims to the Director, Compensation Service. A copy of the referral, and any reply, to include the Director's decision, should be included in the claims file. 4. The AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. 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). _________________________________________________ WAYNE M. BRAEUER 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).