Citation Nr: 1329375 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-00 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial 30 percent evaluation prior to August 30, 2005 and in excess of 50 percent thereafter for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to January 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The December 2008 rating decision granted service connection for PTSD and assigned an initial evaluation of 30 percent, effective December 15, 2003 and a 50 percent evaluation effective August 30, 2005. The February 2010 rating decision denied entitlement to a TDIU. The Veteran initially requested a hearing before a member of the Board. However, in August 2011, the Veteran withdrew that hearing request. Therefore, Board adjudication of the current appeal may go forward without a hearing. See 38 C.F.R. §§ 20.703, 20.704 (2012). 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 The Veteran's PTSD has been rated as 30 percent disabling prior to August 30, 2005 and 50 percent disabling thereafter. There is evidence of record, in the form of private psychiatric evaluations, to indicate that his condition has worsened since his most recent VA examination in August 2008. See February 2010, April 2011, and June 2012 psychiatric examination reports. Another VA compensation examination therefore is needed to reassess the severity of this disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As for the Veteran's claim for entitlement to a TDIU, the Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As the issue of entitlement to a TDIU is impacted by the outcome of the Veteran's PTSD rating, the TDIU claim is considered to be inextricably intertwined. Consequently, the claim of entitlement to a TDIU must be remanded. The AOJ should request an opinion as to whether entitlement to a TDIU is warranted based on the Veteran's service-connected disabilities. 38 C.F.R. § 4.16(a) and (b). The Board further notes that the most recent VA treatment records in the claims file are from February 2010. On remand, the Agency of Original Jurisdiction (AOJ) should make efforts to obtain all outstanding treatment records at any VA treatment facility from February 2010 through the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records for the period from February 2010 through the present. All information which is not duplicative of evidence already received should be associated with the claims file. If the AOJ is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C. § 5103A(b)(2) (West 2002). 2. Upon receipt of all additional records, schedule a VA compensation examination to reassess the severity of the Veteran's PTSD and to determine whether it renders him unemployable. The claims file, including all relevant medical records concerning his evaluation and treatment of this disability, and a copy of this remand, must be reviewed by the examiner for the history of this disability. The examiner must acknowledge receipt and review of the claims file in the report of his/her evaluation. 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 and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. The examiner must also provide an opinion concerning the impact of the Veteran's PTSD on his ability to work to include whether the Veteran is unemployable because of his service-connected disabilities, alone or acting together. The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 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. Ensure the report of the VA compensation examination addresses the applicable rating criteria. If not, return the report to obtain this additional necessary information. 38 C.F.R. § 4.2 (2012). 4. After completing the above and assigning any necessary disability evaluations, the AOJ should adjudicate the issue of entitlement to a TDIU on a schedular basis. If, and only if, the Veteran does not meet the criteria for TDIU on a schedular basis, for any timeframe, under 38 C.F.R. § 4.16(a), refer the claim of entitlement to a TDIU on an extra-schedular basis to the Director of the Compensation and Pension Service for special consideration under 38 C.F.R. § 4.16(b). 5. Then readjudicate these claims in light of all additional evidence received since the most recent supplemental statement of the case (SSOC) in December 2010. If higher ratings are not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. 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). _________________________________________________ D. MARTZ AMES 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).