Citation Nr: 1331519 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-18 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a higher initial rating (evaluation) greater than 30 percent for Posttraumatic Stress Disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Christopher J. Boudi, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from January 1966 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO granted service connection for PTSD and assigned a 30 percent initial rating; the Veteran appealed the initial rating assigned. In September 2010, the Board issued a decision denying the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veteran's Claims (Court). In May 2011, the Court issued an Order vacating the Board decision and remanding the claim back to the Board, consistent with a Joint Motion for Remand between the parties. In December 2011 the Board remanded the Veteran's claim for a higher initial rating back to the RO in order to schedule a hearing before a member of the Board. In May 2013 the Veteran testified to the undersigned Veterans Law Judge via videoconference from Indianapolis, Indiana. A transcript of the hearing has been associated with the record. In a rating decision of October 2012, the RO granted the Veteran's claim for service connection for coronary artery disease and assigned an initial 10 percent rating effective August 31, 2010. The Veteran submitted a timely notice of disagreement in October 2012 regarding the effective date assigned and in a March 2013 rating decision the RO granted an earlier effective date of October 28, 2008 for the grant of service connection as well as a 30 percent rating effective May 14, 2012. When a Veteran has filed a notice of disagreement and there is no statement of the case on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Here however, the Veteran has not notified VA of his intent to appeal from the March 2013 rating decision, and thus the matter of the Veteran's rating for coronary artery disease is not before the Board and need not be remanded for additional action at this time. A review of the Virtual VA paperless claims processing system has been conducted and documents that relate to the present appeals have been considered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Higher Initial Rating for PTSD Pursuant to VA's duty to assist, VA will provide a medical examination if, based upon a review of the evidence of record, VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). Where a claimant asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran is seeking a higher initial rating for his service-connected PTSD, which is currently rated as 30 percent disabling. During his May 2013 hearing the Veteran indicated that his PTSD symptoms had become worse since his last VA examination. In support of the Veteran's contention, the Veteran last underwent VA examination in June 2008, over five years ago. At that that time the Veteran's Global Assessment of Functioning (GAF) score was 60, indicting moderate symptoms; however, since the June 2008 VA examination, GAF scores have been as low as 50 -as recorded in a May 2013 private medical evaluation - indicting serious symptoms. See Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Because the Veteran's last VA examination was completed over five years ago and because the Veteran as well as treatment records indicate that the Veteran's PTSD has worsened since that examination, the Board finds that an updated VA examination is needed to fully and fairly evaluate the Veteran's claim. During his May 2013 hearing, the Veteran also stated that he has been receiving ongoing treatment from the VA. The record currently contains VA treatment records only through May 2011. The Board finds that updated records must be associated with the claims file to properly assess the Veteran's current level of symptomatology. Entitlement to TDIU In a December 2011 statement to VA, the Veteran indicated that he was "currently still working, but because of problems [he has] with concentration and getting along with people [he planed] to retire around the end of February." The Veteran went on to indicate that he was participating in a 90-day work improvement plan, but that without sufficient improvement, he would be fired. The Veteran sent VA a May 2013 opinion from a private vocational expert indicating that he is "unable to secure or maintain gainful employment based upon his service related symptoms," and during his May 2013 hearing, the Veteran's representative expressly raised a claim of entitlement to TDIU. While the issue of TDIU entitlement has not been adjudicated by the RO, it is on appeal as a component of the increased rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, claim must be fully developed before it may be properly adjudicated. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all relevant mental health VA treatment records that are not already of record. This includes any VA treatment records since May 2011. Document all efforts made in the claims file, including any negative responses received. 2. The Veteran should be sent proper VCAA notice with regard to his claim of entitlement to TDIU, and the RO should undertake appropriate development related to such a claim. 3. Following the above development, schedule the Veteran for a VA examination related to PTSD and TDIU. The Veteran's VA claims folder should be made available to the examiner for review in connection with the examination. The examiner should conduct a complete mental health examination, describing the level of the level of severity of the Veteran service-connected PTSD. In addition the VA examiner should state whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation only as a result of a service-connected disability or disabilities. If the Veteran is unable to secure or follow a substantially gainful occupation, the examiner is to state when this limitation began. If it is determined that more than one examination is needed in order to assess the Veteran's PTSD and whether he is able to secure or follow a substantially gainful occupation, such additional examination should be arranged. 4. After completing all indicated development above, readjudicate the claim of entitlement to a higher initial rating for PTSD and adjudicate the claim for TDIU. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The Veteran 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). _________________________________________________ K. J. ALIBRANDO 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) (2013).