Citation Nr: 1328217 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 05-30 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected posttraumatic stress disorder. 2. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to August 1991, and he had prior active duty for training service, from May to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a February 2004 VA examination report, the VA examiner opined that the Veteran has "difficulty maintaining meaningful employment and it is likely that an employer other than his father would have difficulty tolerating his behavior." As such, the record raises an informal claim of entitlement to a TDIU due to the Veteran's service-connected PTSD disorder. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. In October 2009 and June 2011, the Board remanded the case for additional development. In a June 2012 decision, the Board in pertinent part, denied the Veteran's claim of entitlement to a disability rating in excess of 50 percent for PTSD. The Veteran then appealed such issue to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Order, the Court granted a joint motion for partial remand, vacating the Board's June 2012 decision that denied entitlement to a disability rating in excess of 50 percent for PTSD, and remanding the issue to the Board. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. 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 As noted above, the evidence of record raises an informal claim of entitlement to a TDIU. In this regard, with respect to his outbursts of anger as a result of his service-connected PTSD disorder, during a February 2004 VA examination, the Veteran reported that he worked part-time for his father because his father understood his behavior. The February 2004 VA examiner opined that the Veteran has "difficulty maintaining meaningful employment and it is likely that an employer other than his father would have difficulty tolerating his behavior." Similarly, during VA examination in May 2008, the Veteran reported that he had ongoing problems with anger management at work, which resulted in an inconsistent work schedule, as his father would tell him to leave work when he got into arguments on the job. Moreover, the record reflects that the Veteran also reported that prior to working part-time for his father, he attempted to start several businesses; however, they failed, as he was unable to focus due to his inability to concentrate. The issue of whether entitlement to a TDIU is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice, 22 Vet. App. 447 (2009). As the RO has not yet considered the issue of TDIU, the issue must be remanded to the RO for such consideration. The Veteran has not been notified of the criteria necessary to establish a claim for TDIU under 38 C.F.R. § 4.16(a) or (b) as per the Veterans Claims Assistance Act of 2000 (the VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Thus, the RO/AMC must provide the Veteran with a letter satisfying the duty to notify provisions with respect to the claim of entitlement to TDIU. In addition, the record demonstrates that the Veteran's occupational history is unclear. Further, the Veteran has not been provided a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) in connection with his claim of entitlement to TDIU. Accordingly, the RO/AMC must provide the Veteran with a VA Form 21-8940 for him to complete and submit. After the Veteran has completed the VA Form 21-8940, the RO/AMC must complete any additional development which flows from the information provided by the Veteran or obtained by the RO/AMC, to include referring the Veteran's TDIU claim to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for appropriate action as per 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In this regard, the RO/AMC should ensure that the VA examiner furnishes a full description of the effects of the Veteran's service-connected PTSD disorder upon the Veteran's ordinary activity which includes employment. See 38 C.F.R. § 4.10 (2012). As this claim is being remanded, the Board finds that the RO/AMC should also obtain updated VA outpatient treatment records from the VA Medical Center located in Biloxi, Mississippi. 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Finally, as the Veteran's TDIU claim is partly reliant upon his service-connected disabilities and the evaluations assigned for such, the TDIU claim is inextricably intertwined with the Veteran's claim of entitlement to a disability rating in excess of 50 percent for his service-connected PTSD disorder. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran appropriate notice with respect to the TDIU, that includes an explanation as to the information or evidence needed to substantiate a claim for a TDIU. 2. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO, for the purpose of obtaining a detailed, post-service work history. 3. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for TDIU, as well as his claim for an increased disability rating for his service-connected PTSD disorder. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's VA outpatient treatment records dated in January 2009 to the present, from the VA Medical Center located in Biloxi, Mississippi. All records obtained must be associated with the evidence of record. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named 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) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must then readjudicate the issue of entitlement to a disability rating in excess of 50 percent for PTSD, on schedular and extraschedular bases. 5. Then, the RO must also adjudicate the issue of whether a TDIU is warranted, with consideration of 38 C.F.R. § 4.16(b) (2012). If any issue on appeal remains denied, a supplemental statement of the case 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. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ L. M. BARNARD Acting 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).