Citation Nr: 1326628 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-17 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to February 1972, and has additional prior unverified service. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating assigned to the Veteran's PTSD to 70 percent, effective March 26, 2009. An April 2011 rating decision also denied the Veteran's claim of entitlement to a TDIU. Review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, specifically, updated VA treatment records dated through July 2013 and reports of recent VA examinations in August 2011 and June 2013. 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 In July 2010, the Veteran identified Dr. Jordan as a source of relevant private treatment records. Dr. Jordan's records, dated from July 2009 to May 2010, were submitted. In August 2010, the RO sought updated treatment records from Dr. Jordan, and when none were submitted, the RO initiated a second request in October 2010. At the time of the April 2011 Statement of the Case (SOC), the RO informed the Veteran that a negative response was received from Dr. Jordan; however, review of the claims file was silent for such a response. On remand, the AMC should seek an updated authorization from the Veteran and seek Dr. Jordan's updated private treatment records. The Veteran's last VA examination for his PTSD is dated in August 2011. As the Remand herein seeks a comprehensive opinion as to the effects of the Veteran's service-connected disabilities, singly and jointly, on his ability to secure or follow a substantially gainful occupation, an updated VA examination to determine the current severity of his PTSD is in warranted. At the time of the Veteran's August 2011 VA examination as to his general health, specifically including his service-connected diabetes mellitus and its complications, the examiner found that such did not affect the Veteran's ability to perform sedentary employment, and may only affect his ability to perform physical employment. At the time of the Veteran's August 2011 VA examination as to his psychiatric disorder, the examiner found that the Veteran, with moderate to severe impairment, could probably work in a low-stress job with limited interactions with others and without serious cognitive demands. At the time of the Veteran's June 2013 VA examination as to his general health, specifically including his service-connected diabetes mellitus and its complications, the examiner again found only that those disabilities prevented the Veteran from physical employment. Significantly, as a result of the June 2013 VA examination, the Veteran has been awarded, in a July 2013 rating decision, service connection for diabetic nephropathy and diabetic neuropathy of all four extremities. No examiner has rendered a sufficient opinion as to the effects of the Veteran's service-connected disabilities, singly and jointly, on his ability to secure or follow a substantially gainful occupation. In this regard, it does not appear that the RO, subsequent to the Veteran's June 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, sought additional information regarding the Veteran's employment history, specifically, VA Forms 21-4192, Request for Employment Information in Connection with Claim for Benefits, from any listed employers. On remand, subsequent to obtaining any outstanding relevant evidence and clinical evaluation of the current severity of the Veteran's PTSD; and with review of the report of the Veteran's recent diabetes mellitus examination in June 2013, an opinion as to the impact of his service-connected disabilities on his employability should be obtained. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a new VA Form 21-4142, Authorization and Consent to Release Information to the VA, and request that he complete such in order to initiate another attempt to secure his updated private treatment records from Dr. Jordan. Advise the Veteran that he may submit such records if he so chooses. Any and all responses, including negative responses, must be properly documented in the claims file and the Veteran must be so informed. 2. If the June 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, is outdated, contact the Veteran and request that he submit an updated form. If not, forward VA Forms 21-4192, Request for Employment Information in Connection with Claim for Benefits, to the Veteran's most recent employers, as identified in his VA Form 21-8940. Any and all responses, including negative responses, must be properly documented in the claims file and the Veteran must be so informed. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his PTSD. The examiner should note all relevant pathology, and all indicated tests should be conducted. 4. Schedule the Veteran for an examination with an appropriate examiner to determine the impact of his service-connected disabilities on his employability. The examiner should be notified that the Veteran is currently service-connected for PTSD, diabetes mellitus, diabetic nephropathy, and diabetic neuropathy of all four extremities. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities, both singly and jointly, on his employability. The examiner may not consider the Veteran's age or non-service-connected disabilities. The examiner is directed to specifically consider the Veteran's award of disability benefits from the Social Security Administration (SSA), his employment history, findings recorded during private treatment, and the lay statements of record. The examiner should opine as to: (a) whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation; and (b) if so, upon what date, approximately, the Veteran became unemployable. To this end, the examiner must give some indication as to whether any employment in which the Veteran may engage is only possible with special consideration or accommodation (i.e., just marginal employment versus substantially gainful employment). The claims file, including a copy of this Remand, should be made available to the examiner(s) for review in conjunction with the examination(s), and the examiner(s) should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner(s) should fully articulate a sound reasoning for all conclusions made. If the examiner(s) cannot answer the above questions without resorting to mere speculation, the examiner(s) should state why this is so. 5. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental SOC (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) These claims 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). _________________________________________________ S. L. Kennedy 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).