Citation Nr: 1326835 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-18 450A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from June 1968 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent disability rating effective September 29, 2005. The Veteran disagreed with both the disability rating and effective date. In a March 2010 rating decision, the RO increased the disability rating for PTSD to 70 percent effective January 15, 2004. Although the record shows that an effective date of the date of the Veteran's original claim for service connection for a psychiatric disability has been assigned, the increase in disability does not represent the maximum rating available and thus the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disability is part of a claim for a higher rating when such claim is raised by the record or asserted by the veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court further held that, when evidence of unemployability is submitted at the same time that the veteran is appealing the initial rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran has filed a claim for a TDIU due to his PTSD. Thus, the issue of entitlement to a TDIU is before the Board. Lastly, the Board notes that part of the Veteran's claims folder is missing, and possibly destroyed, and his claims folder has been rebuilt as much as possible. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to a 100 percent disability rating for his PTSD. Alternatively, he contends that he is entitled to a TDIU due to his PTSD. The Veteran was last examined by VA in October 2010. In a November 2011 statement, he indicated that he had resigned from his job due in part to his PTSD. In April 2012, he submitted records from the Social Security Administration (SSA) indicating that he had been awarded disability benefits. As they may be relevant to the appeal, an attempt should be made to obtain any decisions and medical records upon which the award of SSA disability benefits was based. Further, as the record indicates that his PTSD may have worsened since the last examination, he should be afforded a current examination. Lastly, the Veteran receives treatment from the Atlanta VA Medical Center (VAMC), and the record contains treatment notes through December 2010. Thus, any outstanding treatment notes since that time should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Contact the Social Security Administration and request a copy of any decisions granting the Veteran disability benefits and the medical records upon which the award was based. 2. Obtain any records of treatment from the Atlanta VAMC since December 2010. 3. Then, schedule the Veteran for VA examination to determine the nature and severity of his PTSD. The claims folder must be made available to the examiner for review, and a notation to the effect that this review took place should be included in the report. The report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies are to be performed, and the examiner should review the results of any testing prior to completing the report. The examiner should discuss the impact of the PTSD on the Veteran's ability to obtain and maintain employment. The examiner should specifically provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his PTSD. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should state the reason why. The examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Then, readjudicate the claims, including adjudication of the claim for a TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claims to the Board. 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). _________________________________________________ F. JUDGE FLOWERS 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).