Citation Nr: 1326442 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-12 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 70 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: James Fausone, Attorney ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran is currently in receipt of a 70 percent rating for his service-connected PTSD. He asserts that he is entitled to a higher rating and further, that his PTSD renders him unemployable. The Veteran's last compensation examination was in March 2011. At that time, the VA examiner was asked to evaluate the severity of the Veteran's PTSD and its impact on employability, as well as opine on the validity of a prior January 2010 VA opinion on the Veteran's employability. In essence, the March 2011 VA examiner determined that the January 2010 opinion as to employability was accurate at the time it was offered, but also found the prior opinion to be speculative and vulnerable. Regarding the Veteran's current functioning, the March 2011 examiner was unable to offer an opinion as to the severity of PTSD or its impact on employability because he was unable to conclude reliably that the Veteran had PTSD. To that end, he pointed out various inconsistencies in the Veteran's reporting and indicated the presence of numerous red flags evidencing less than candid reporting. He further noted that the reported severity of the Veteran's symptoms was statistically improbable. Given the foregoing, and as it has been over two years since the Veteran's last examination, the Board finds that the Veteran should be afforded another examination to obtain an accurate assessment of the current severity of the Veteran's PTSD and its impact on his employability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Pertinent to the Veteran's claim of unemployability, the Board notes that the Veteran has asserted that he was able to work so long due to working in a protected environment, noting that his employer and supervisor were aware that he had PTSD and concessions were made. In support of his claim, the Veteran submitted a January 2010 statement from his supervisor, Mr. B. D., attesting to observations of the Veteran and the impact PTSD had on his employment. This statement was not provided on company letterhead. Mr. B. D. specifically noted that the Veteran's PTSD symptoms led to his eventual dismissal. However, in March 2010, the Veteran's employer, Mr. T.W., submitted a statement certifying that the Veteran's employment terminated when he would not accept an offer of reduced hours. He further stated that he had never been advised in writing or verbally of any disability. In a May 2010 statement, the Veteran himself stated that he was laid off due to the economy. The Board further points out that the supervisor who submitted the January 2010 statement in support of the Veteran's claim is also his brother. In light of the foregoing, the Board finds the supervisor's January 2010 statement to be unreliable. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). In addition, the Veteran should be asked to identify any relevant ongoing medical treatment. 38 U.S.C.A. § 5103A(c) (West 2002). In this regard, the Board notes that the most recent mental health treatment record associated with the claims file is dated in October 2010. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and dates of treatment for all medical care providers, both VA and private, who have recently treated him for his PTSD. After securing the necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file, including ongoing VA mental health treatment records dated after October 2010. If any requested records cannot be obtained, the Veteran and his attorney should be notified of such. 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination, to include psychometric testing, to determine the current severity of his service-connected PTSD. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The claims folder must be reviewed in conjunction with the examination. The examiner should also comment on the impact of the Veteran's service-connected PTSD on his ability to obtain and maintain gainful employment, without regard to age or nonservice connected conditions. The examiner should note that the January 2010 statement from the Veteran's supervisor (his brother) is of questionable reliability. All opinions must be accompanied by an explanation of the underlying reasons for the conclusion. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 3. After undertaking the development above, and any additional development deemed necessary, the Veteran's claim for an increased rating for PTSD and entitlement to a TDIU should be readjudicated. If the benefits sought on appeal remain denied, provide a Supplemental Statement of the Case that includes appropriate TDIU regulations, and provide an appropriate period of time in which to respond. Then, return the appeal to the Board, if in order. 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). _________________________________________________ K. A. BANFIELD 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).