Citation Nr: 1328933 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-15 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1952 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran was scheduled to present testimony during a Travel Board hearing in April 2011. The Veteran did not appear at the scheduled hearing and has not requested that it be rescheduled. In a September 2011 decision, the Board, in pertinent part, denied the Veteran's claim for a rating in excess of 50 percent for PTSD. The Veteran appealed the Board's September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum decision dated in January 2013, the Court vacated the Board's denial of an initial rating in excess of 50 percent for PTSD and remanded the case for readjudication in accordance with the decision. A review of the Virtual VA and VBMS paperless claims processing systems does reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 A remand is necessary for further evidentiary development of the Veteran's initial rating claim because the Veteran contends that his PTSD symptoms have continued to worsen since his most recent March 2011 VA mental health examination. See Veteran's VA Form 9, April 2011. Additionally, the most current VA Medical Center (VAMC) records in the file are from July 2010. When a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Olson v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Additionally, VA has a duty to obtain relevant medical treatment records. See 38 C.F.R. § 3.159(c) (2012). Therefore, the Board finds that upon remand, the Veteran should be afforded a new VA examination to address the current severity of his PTSD and updated medical treatment records should be obtained from the Salem VAMC, Princeton Vet Center, and the Veteran's private physician, Dr. N. R. D. Furthermore, recent evidence received from the Veteran indicates that he may be unable to follow substantially gainful occupation as a result of his service-connected PTSD. See Psychiatric Evaluation, Dr. N. R. D., July 2013 ("[The Veteran] does not appear able to tolerate much stress and is unable to handle any gainful employment."). TDIU claims are to be liberally construed. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, a claim for a TDIU has been raised. Id; Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary-to include issuing appropriate notice and obtaining a medical opinion as to the effect of the Veteran's service-connected disabilities (PTSD, bilateral hearing loss, and tinnitus) on his employability. The record is replete with contradictions regarding the Veteran's employment status during the appeal period. As a result, upon remand, the RO should obtain the Veteran's employment history from the Veteran's former employer, a car dealer. See 38 C.F.R. § 3.159(c)(1). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran appropriate notice regarding the claim for a TDIU. Request the Veteran complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 2. Request that the Veteran have his last employer complete and return VA Form 21-4192, Request for Employment Information. Additionally, with any necessary assistance from the Veteran, obtain his employment records from February 2005 to the present. Document all attempts to obtain this evidence. If the RO is unable to obtain the requested information that fact must be documented in the Veteran's claims file. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 3. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for any mental health issues since February 2005. After securing the necessary release(s), obtain these records, including all pertinent treatment records from the Salem VAMC from July 2010 to the present, the Princeton Vet Center from July 2013 to present, and Dr. N. R. D., from July 2010 to present. 4. Inquire whether or not the Veteran is in receipt of Social Security Administration (SSA) disability benefits as the result of his service-connected PTSD. If so, contact SSA and request a copy of the administrative decision awarding disability benefits to the Veteran, as well as all underlying evidence and information relied upon in rendering such decision. Any attempts to obtain records that are ultimately unsuccessful, should be documented in the claims folder. 5. After all the above development has been accomplished, schedule a VA psychiatric examination to ascertain the current severity of the Veteran's PTSD. The claims file and a copy of this remand must be reviewed by the examiner. All necessary tests should be conducted and all clinical findings reported in detail. (a) The examiner is requested to identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are specifically attributable to his service-connected PTSD. The examiner must conduct a detailed mental status examination. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner should distinguish, to the extent possible, between symptomatology resulting from the Veteran's service-connected PTSD and any other disorders, including depression, anxiety and any cognitive issues. If it is medically impossible to distinguish among symptomatology resulting from the several disorders, the examiner should state this in the examination report. (b) The examiner is also requested to provide an opinion as to whether the Veteran's service-connected disabilities (PTSD, bilateral hearing loss and tinnitus) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to any impairment caused by non-service-connected disabilities. The examiner must provide complete rationales for all conclusions reached. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. Then, readjudicate the issues on appeal. If any benefits remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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). 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). _________________________________________________ MICHAEL MARTIN 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).