Citation Nr: 1330936 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-18 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected 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: The American Legion ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to March 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, the RO granted service connection for PTSD and assigned an initial 30 percent disability rating, effective from January 17, 2007. The Veteran disagreed with the initial 30 percent disabling rating assigned for the PTSD and this appeal ensued. As explained below, the TDIU claim is inferred from the record. 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 asserts that an initial disability rating in excess of 30 percent is warranted for the service-connected PTSD because his PTSD symptoms are more severe that what the current 30 percent rating represents. The initial 30 percent rating was assigned based on evidence dated in 2007. VA outpatient mental health records from December 2006 through January 2008 show treatment for PTSD symptoms including nightmares, flashbacks, cold sweats, depression, anxiety, exaggerated startle reaction, intrusive thoughts, crying spells, insomnia, agitation, irritability, and hypervigilance. A March 2007 VA mental health record described the Veteran's PTSD as chronic and severe. A QTC examination provided on a fee basis for VA in April 2007 indicated a Global Assessment of Functioning (GAF) score of 50 and the examiner opined that the best description of the claimant's current psychiatric impairment is: psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and conversation normal. The examiner further indicated that the above statement was supported by the following symptoms: chronic sleep impairment and physical limitations secondary to his injury and muscular dystrophy as well. The Veteran's accredited representative argues, in the August 2013 Appellate Brief (located in the Veteran's Virtual VA Folder), that the record is stale and another VA examination is necessary. The Board agrees. First, there is no evidence in the claims file dated since January 2008 addressing the severity of the Veteran's PTSD. Furthermore, the April 2007 QTC examination, which is now over 6 years old, is not adequate for rating purposes because it does not address all of the Veteran's reported PTSD symptoms in the opinion provided. The examiner indicated that the Veteran's chronic sleep impairment and physical limitations supported the finding that the Veteran that's psychiatric impairment caused only an occasional decrease in work efficiency and intermittent inability to perform occupational task. This opinion, however, fails to recognize the Veteran's other reported symptoms of anxiety, depression, flashbacks, cold sweats, exaggerated startle reaction, hypervigilance, and irritability. Moreover, the Veteran has recently indicated that he is unable to work as a result of his disabilities, including his psychiatric disability. A review of the record reflects that the Veteran may be receiving Social Security Administration (SSA) Disability benefits. The SSA records are not in the claims file and are potentially relevant to the issue on appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thus, the Board must remand the claim in an attempt to obtain these records. Finally, when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran raised the issue of entitlement to a TDIU because the Veteran claims entitlement to a 100 percent rating for PTSD, and that he is unemployable due to service-connected disabilities, including PTSD. The issue of TDIU must therefore be remanded pending resolution of the Veteran's claim for an initial rating in excess of 30 percent for the service-connected PTSD. The law provides that TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this regard, TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If, however, a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Currently, the Veteran's service-connected PTSD is rated as 30 percent disabling. His other service-connected disabilities include hearing loss, rated as noncompensable; tinnitus rated as 10 percent disabling; Muscular residuals of a gunshot wound of the right arm, rated as 30 percent disabling; scar residuals of a gunshot wound to the right arm, rated as 10 percent disabling; and post-traumatic arthritis, right elbow (a residual of the gunshot wound) rated as 10 percent disabling. The combined rating for compensation purposes is 60 percent. On remand, the RO should provide the Veteran with notice concerning how to substantiate TDIU and request that he complete a TDIU claim form and have the Veteran examined to determine if he is unemployable due to service-connected disabilities. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. It appears that only VA records dated from December 2006 through January 2008, but no later, are associated with the claims file. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file, all VA treatment records and mental health records prior to December 2006 and after January 2008 that are pertinent to the claims on appeal. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file all private treatment records and mental health records identified by the Veteran as pertinent to his claims. Properly notify the Veteran if any identified records are unavailable and further action to obtain them would be futile. 3. Request directly from the SSA complete copies of any determination on a claim for disability benefits, as well as any re-adjudications, from that agency as well as the records, including medical records, considered in adjudicating/re-adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 4. After completion of #s 1, 2 and 3 above, schedule the Veteran for a VA examination by a psychiatrist to ascertain the current severity of his service-connected PTSD. The claims files must be available for review and that review should be indicated in the examination report. The examiner should describe the nature and severity of all symptoms of the Veteran's PTSD, and how those symptoms affect the Veteran's occupational and social functioning, as well as their effect on his overall disability picture. A Global Assessment of Functioning (GAF) score should be provided, with an explanation of what the GAF score represents. The examiner should also opine as to whether the current severity of the Veteran's PTSD symptoms are consistent with the symptoms in 2007; or, whether they have increased or lessened since that time, and to what degree. A complete rationale for all opinions is required. 5. The record shows that the Veteran is not working and alleges that his service-connected disabilities (PTSD, residuals of a gunshot wound, hearing loss and tinnitus) may prevent him from obtaining gainful employment. Advise the Veteran of the information and evidence that would substantiate his claim for entitlement to TDIU, including, but not limited to, his last date of employment, work history, employee records, statements from employers and any other corroborating information that would show unemployability. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159. In addition, request that he complete a TDIU claim form, so that he can provide information pertaining to his education, work experience, and training. 6. After completion of the above development, and if necessary, obtain an opinion from an appropriate VA physician to determine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's service-connected PTSD, hearing loss, tinnitus, residuals of a gunshot wound (including the muscle damage, scar, and arthritis) when considered together, render the Veteran unable to obtain and/or maintain gainful employment, given his level of education and work history. The Veteran's age may not be considered, and the fact that the Veteran may or may not have been retirement eligible at the time he stopped working is also not relevant in determining whether his service-connected disabilities are of such severity that it renders him unable to obtain or maintain gainful employment. 7. Ensure that the information provided in the opinions satisfy the criteria above and, if not, return the report(s) as insufficient. Then readjudicate the Veteran's claim for an initial disability rating in excess of 30 percent for the service-connected PTSD, and determine whether the Veteran is entitled to a TDIU after ensuring that any other development deemed warranted is complete. If the Veteran does not meet the schedular threshold for entitlement to a TDIU, consideration must be given as to whether to refer the matter to Director, Compensation and Pension Service for extra-schedular consideration. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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). _________________________________________________ BETHANY L. BUCK 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).