Citation Nr: 1329127 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-04 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated 50 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which continued a 50 percent disability rating for PTSD. In February 2012, the Board denied entitlement to a rating in excess of 50 percent for PTSD. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In a March 2013 Joint Motion for Remand, the parties moved to vacate the Board decision and remand the case to the Board. The Court granted the motion by an Order dated in March 2013. In July 2013, the Veteran's attorney representative submitted additional lay and clinical evidence in support of the Veteran's claims, accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2012). Nevertheless, in light of the action taken below, that newly submitted evidence should be considered by the RO in the first instance on remand. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating entitlement to an increased rating for PTSD and entitlement to a TDIU. The Veteran was last afforded a VA examination for his PTSD in September 2011, nearly two years ago. Additional evidence received since that examination, including June 2013 and July 2013 statements from the Veteran's treating VA mental health providers, suggests that his condition may have worsened. Because there may have been changes in the Veteran's condition, the Board finds that a new psychiatric examination is needed to fully and fairly evaluate the Veteran's claim for increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Next, the Board observes that the Veteran's attorney representative has raised the issue of TDIU as due to PTSD, contending that while the Veteran is currently employed, he works in a protected or sheltered employment, and is otherwise unable to obtain or maintain gainful employment due to his PTSD. In support of that assertion, the Veteran's attorney submitted a July 2013 private employability evaluation report indicating that the Veteran's PTSD has rendered him unable to secure or follow substantially gainful employment, and has rendered him unemployable since 2005. However, the vocational consultant who authored the report provided inadequate reasoning for her conclusion. Indeed, her conclusion is contradicted by other evidence of record. For example, while the vocational consultant opined that the Veteran has been unemployable due to PTSD since 2005, a July 2006 VA examination report notes that the Veteran "has not had significant difficulties at work due to his symptoms" and "continues to function relatively well vocationally." Similarly, during an August 2007 VA examination, the Veteran himself reported that he continued to work full time as a boilermaker and had "few problems with the work." He further described a "continued ability to manage his current employment..." In light of the vocational consultant's failure to reconcile those findings or support her conclusion with sufficient rationale, the Board finds that another opinion is necessary regarding the Veteran's employability. In light of the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), entitlement to a TDIU is properly considered as part of the claim for increased rating for PTSD, and the Board finds that a claim for a TDIU as due to PTSD has been raised. However, the Board finds that further development is required prior to adjudicating the claim of entitlement to a TDIU, to include a VA opinion. The Board also notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim. In addition, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment and income information. Additionally, since the most recent supplemental statement of the case in September 2011, new evidence was received pertaining to the claims for an increased rating for PTSD and a TDIU, including lay statements from the Veteran and his supervisor; June 2013 and July 2013 statements from the Veteran's treating mental health care providers; and a July 2013 private employability evaluation report. While a waiver of RO consideration was submitted for that evidence, as other development is needed, the Board will remand these claims to the RO for readjudication with consideration of the newly submitted evidence. 38 C.F.R. § 20.1304(c) (2012). Finally, the Board also notes that there appear to be outstanding treatment records pertinent to the Veteran's claims. In June 2006, the Veteran provided authorization for the release of records pertaining to mental health treatment at the Vet Center in West Haven, Connecticut, beginning in May 2006. It appears that the RO requested those records in October 2006; however, no Vet Center treatment records have been associated with the claims file, nor was a negative response received from the Vet Center. There also appear to be outstanding VA treatment records, as the Veteran has reported weekly therapy for PTSD during the period on appeal, but no treatment records dated since September 2011 have been associated with the claims file. The Board also notes that the Veteran's increased rating claim was received in May 2007, and thus, the period on appeal extends back to May 2006. However, no records dated between June 2005 and September 2006 have been associated with the claims file. Accordingly, the Board finds that remand is necessary to obtain those records. 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. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have recently treated him for his PTSD. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file, to include records pertaining to Vet Center treatment beginning in May 2006. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain all relevant ongoing VA treatment records dating from May 2006 to September 2006, and since September 2011 from the VA Medical Center in West Haven, Connecticut. If the requested records cannot be obtained, the Veteran and his representative should be notified of such. 3. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his PTSD. The examiner must review the claims folder in conjunction with the examination. The examination report should include a detailed account of all psychiatric pathology found to be present as well as a mental status examination. All tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's service-connected PTSD and indicate the impact of his PTSD on occupational and social functioning. The reasoning for any opinions given should be provided. After a review of the claims file, to include the June 2013 and July 2013 statements from the Veteran's mental health providers; the June 2013 employability evaluation; and the June 2013 supervisor's statement, the examiner should provide an opinion as to whether the Veteran's PTSD symptomatology prevents the Veteran from obtaining or maintaining gainful employment, without regard to his age or nonservice-connected disabilities. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. After the development requested above, and any additional development deemed necessary, has been completed to the extent possible, the record should be reviewed and the claims for increased rating for PTSD and TDIU due to PTSD adjudicated. If the benefits sought on appeal are denied, then the Veteran and his attorney should be furnished with a supplemental statement of the case that includes the regulations governing TDIU claims and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ K. A. BANFIELD 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).