Citation Nr: 1327049 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 11-15 177 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1972 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2009 and October 2010 rating decisions of the Columbia RO. The Veteran's claim for an increased disability rating for PTSD is REMANDED to the RO. VA will notify the appellant if further action is required. FINDING OF FACT With resolution of the benefit of the doubt in the Veteran's favor, the Veteran's service-connected mental disorder renders him incapable of employment. CONCLUSION OF LAW The criteria for the establishment of a total disability evaluation based on individual unemployability are approximated. 38 U.S.C.A. §§ 1155 , 5107(b) (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16(a)(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is in receipt of a 70 percent disability evaluation for a disorder characterized as generalized anxiety, post-traumatic stress disorder, and anxiety neurosis. He has specifically claimed, and the record suggests that he may be unemployable as a result of this disability. TDIU is granted where a Veteran's service connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim for TDIU will be granted on this basis. 38 U.S.C.A. § 5107(b) (West 2002); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Shortly after submission of his July 2008 claim for an increased disability rating for a mental disorder, VA medical records were received showing in part that the Veteran was sleeping anywhere from 2 to 5 hours per night; he was incapable of sustained communications in writing; and that he was obsessed to distraction with an in-service incident involving the mass shooting of fellow airmen. In a March 2009 VA examination, the Veteran in substance reported that he was unable to focus on tasks and he was constantly anxious but was unaware of the focus of that anxiety. He reported periods where he "lost it," and would begin crying for no reason. The examiner noted that the Veteran had "severe anxiety," as well as major depression with a severe degree of impairment in social and occupational functioning. He had not been employed in nearly 20 years. The Veteran reiterated these essential reports in a May 2010 VA examination. The law in this matter does not require a certainty of unemployment due to service-connected disorders, only that the evidence approximates balance. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but such would not materially assist the Board in this determination. The Veteran's reports of his mental and social functioning have been essentially consistent since the submission of his claim and it appears that the Veteran would not be able to sustain regular employment due to his service-connected mental disorder. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet.App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). Given these factors, a TDIU is granted. REMAND The Board's present action in granting a TDIU does not moot the Veteran's claim for an increased schedular disability rating. Locklear v. Shinseki, 24 Vet. App. 311, 318 , footnote 2 (2011), Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). The Veteran last underwent a VA examination in May and July 2010. He has raised general allegations of a worsening of his disorder since that time. The case is REMANDED for the following action: 1. Obtain copies of ongoing mental health treatment records at the Dorn VA Medical Center (VAMC) since March 2011 and associate these records with the claims file. 2. Schedule the Veteran for a VA examination by a clinician with appropriate experience in order to determine the current severity of the Veteran's PTSD. a) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. b) The examiner should identify the nature, frequency, and severity of all current manifestations of PTSD. The examination report should include a full psychiatric diagnostic assessment including a Global Assessment of Functioning (GAF) score on Axis V. d) The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on clinical experience, medical expertise, and established medical principles. e) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Finally, after completing the above, and any other development deemed necessary, readjudicate the claim. If the benefit sought on appeal is not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals