Citation Nr: 1326293 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-29 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The October 2010 rating decision granted entitlement to service connection at a 30 percent initial evaluation for posttraumatic stress disorder (PTSD), effective October 21, 2009. In October 2011, the RO issued a rating decision granting an increased initial evaluation of 50 percent for PTSD, effective October 21, 2009. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (finding that a claim remains in controversy where less than the maximum available benefits are awarded). The issue of entitlement to a total disability rating based upon individual unemployability (TDIU benefits) has been raised by the record. A request for TDIU benefits is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, entitlement to TDIU benefits is listed as an issue on appeal. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran is seeking an increased initial evaluation for his service-connected PTSD, and entitlement to TDIU benefits. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A. Social Security Administration Records In July 2012, the Veteran submitted a letter from the Social Security Administration (SSA) indicating that he had been awarded SSA disability benefits, effective November 1, 2010. Where there has been a determination that the Veteran is entitled to SSA benefits, the records concerning that decision are needed by the VA for evaluation of pending claims, and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the RO must make an attempt to obtain these records. B. Updated Treatment Records and Examination The Veteran contends that his PTSD has worsened since his most recent VA examination in September 2011. Specifically, he claims that his PTSD is now severe and prevents him from obtaining employment. Under these circumstances, the RO must request updated evidence from the Veteran, and then schedule him for the appropriate VA examination to ascertain the current severity of his service-connected PTSD. 38 C.F.R. § 3.159(c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). C. Claim for TDIU Benefits In November 2011, the Veteran filed a statement indicating that his PTSD renders him unemployable. Thus, the issue of entitlement to TDIU benefits has been raised by the record. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a Veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider a total rating for compensation based upon individual unemployability). As the RO has not yet considered whether the Veteran is entitled to TDIU benefits, the issue must be remanded to the RO for adjudication. Rice, 22 Vet. App. at 453. If, in the course of adjudicating this issue, the RO determines that the Veteran does not meet the rating criteria for TDIU benefits under 38 C.F.R. § 4.16(a) (2012), but his service-connected disabilities prevent him from following a substantially gainful occupation, the provisions of 38 C.F.R. § 4.16(b) must be followed. These provisions state that a claim for TDIU benefits may be referred to the Compensation and Pension Service when a Veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a) but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b). Accordingly, the case is remanded for the following action: 1. Provide the Veteran with a letter satisfying the statutory and regulatory duty to notify provisions with respect to his claim of entitlement to TDIU benefits. This notice letter must also include a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. Specifically ask him to identify all VA and non-VA medical providers who have treated him for his service-connected PTSD, tinnitus, and bilateral hearing loss since October 2009. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. Thereafter, the Veteran must be afforded an examination to determine the current severity of his service-connected PTSD. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms. The examiner must comment upon the presence or absence, frequency, and severity of the Veteran's anxiety and depression symptoms to include: affect; speech; panic attacks; ability to understand complex commands; short- and long-term memory; judgment; abstract thinking; motivation; mood; ability to establishing and maintaining effective work and social relationships; suicidal and/or homicidal ideations; obsessional rituals; ability to function independently, appropriately, or effectively; impulse control; neglect of personal appearance and hygiene; ability to adapt to stressful circumstances; delusions or hallucinations; general behavior; persistent danger of hurting self or others; ability to perform activities of daily living; and orientation. The examiner must also enter a complete multiaxial evaluation, and assign a GAF score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. 4. The Veteran must also be afforded an examination to determine the effects of his service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on a review of the evidence of record, the clinical evaluation, and with consideration of the Veteran's statements the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, either alone or acting in concert with each other, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 5. The Veteran must be notified that it is his responsibility to report for all scheduled examinations, and that the consequences for failure to report for an examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation in the claim file must show that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the issues on appeal. If either claim remains denied, a supplemental statement of the case, with consideration of whether extraschedular evaluations are warranted, must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ JOY A. MCDONALD 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).