Citation Nr: 1329075 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 12-04 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with depressive disorder not otherwise specified. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to January 1970. He received the Combat Action Ribbon for his service in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied a rating in excess of 30 percent for PTSD with depressive disorder not otherwise specified. Although in his February 2012 VA Form 9 the Veteran requested a Board hearing via videoconference, in a March 2013 statement from the Veteran's representative, the Veteran withdrew his request for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.702(d) (2012). The Veteran submitted additional medical evidence in March 2013, which was after the case was certified to the Board. However, also in March 2013, the Veteran submitted a waiver of his right to have any additionally submitted evidence considered by the RO in the first instance and instead opted to request that the Board consider any such additional evidence submitted. Therefore, the Board may proceed with the appeal. 38 C.F.R. § 19.9(d)(3) (2012). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that his service-connected PTSD with depressive disorder not otherwise specified is more severe than is contemplated by the currently assigned 30 percent rating. A review of the record reflects that the Veteran's most recent VA examination was conducted in May 2010. The report of that examination indicates that the Veteran is moderately impaired in terms of his psychosocial functioning due to his PTSD and depression symptoms. The examiner specifically found that the Veteran is not totally occupationally and social impaired due to his PTSD. The examiner further determined that the Veteran's PTSD signs and symptoms do not result in deficiencies in judgment, thinking, family relations, work, mood or school, and that there is not reduced reliability and productivity due to PTSD symptoms. Instead, the examiner found occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning. However, in March 2013 the Veteran submitted a January 2013 private psychological assessment which indicates that the Veteran suffers from severe occupational and social impairments with deficiencies in most areas, such as work, family, relations, and mood, due to his PTSD-related symptoms. As such, this private treatment record suggests a worsening of the Veteran's service-connected PTSD with depression. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Weggenmann v. Brown, 5 Vet. App 281 (1993). Consequently, a remand is required for a new VA examination. The Board also notes the Veteran has asserted that he is unable to work full time and unable to find employment as a result of his PTSD with depression signs and symptoms. The May 2010 VA examination report notes that the Veteran did not contend that his unemployment was due to the effects of the PTSD with depression. The May 2010 VA examination report notes that the Veteran was retired as a result of physical problems (noted to be back problems). In March 2013 the Veteran submitted a VA Form 21-8940, which indicates that he last worked in October 2012, having only been employed at that job for one month. Prior to that, he indicated that he worked from June 2012 to August 2012, and before that he stated that he worked from October 2007 to March 2008. Further, the January 2013 private psychological assessment indicates that the Veteran has been unable to work since 2009 because of his limitations due to his PTSD symptoms. Thus, the issue of entitlement to TDIU has been raised by the record. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider a total rating for compensation based upon individual unemployability). A request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. As the RO has not yet considered whether the Veteran is entitled to TDIU, the issue must be remanded to the RO for initial adjudication. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). The Veteran currently does not currently meet the schedular criteria for a TDIU. However, the outcome of the increased rating claim could change this. As such, the TDIU issue is inextricably intertwined with the issue of entitlement to an increased rating for PTSD with depression. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Moreover, a TDIU can also potentially be granted on an extraschedular basis. 38 C.F.R. § 4.16(b) (2012). Therefore, the RO should send a notice letter to the Veteran for his TDIU claim. This letter should notify the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, as the case is being remanded for a new VA examination, an opinion regarding whether the Veteran's service-connected PTSD with depression causes him to be unemployable should also be obtained on remand. Finally, the record reflects that the Veteran receives treatment for his PTSD with depression through VA. The record contains VA treatment records from the VA Medical Center in Birmingham, Alabama, dating through July 2011. The Veteran's VA treatment records dating from July 2011 to the present should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records from the VAMC in Birmingham, Alabama and any associate outpatient clinic, dating from July 2011 to the present, and associate them with the claims file. 2. Provide the Veteran with a letter satisfying the duty to notify provisions with respect to his claim of entitlement to TDIU. 3. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his PTSD with depression, and the impact the disability has on the Veteran's ability to work. The claims file and a copy of this Remand must be provided to the examiner and reviewed in conjunction with the examination. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms, conduct a mental status examination, enter a complete multiaxial evaluation, and assign a Global Assessment of Functioning (GAF) score, together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning in accordance with VA's rating schedule. The examiner is also asked to obtain a complete occupational history from the Veteran, and to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD with depression, without consideration of his non-service-connected disabilities and without regard to his age, renders him unable to secure or follow a substantially gainful occupation. The examiner must also comment on the findings contained in the January 2013 private psychological assessment report. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 4. Notify the Veteran that he must report for the examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claims on appeal. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).