Citation Nr: 1332176 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-00 201 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from December 1964 to March 1967. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of an April 2012 rating decision by the RO. In October 2011, the Veteran raised the issue of entitlement to a TDIU rating. While the Veteran was notified that his claim had been denied in a May 2012 notice letter, the accompanying May 2012 rating decision did not adjudicate his TDIU claim. In Rice v. Shinseki, 22 Vet.App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As the Veteran has submitted evidence indicating that he has been unable to work while seeking an increased rating, the issue of a TDIU has been added to the present appeal. See Locklear v. Shinseki, 24 Vet.App. 311 (2011) (although a TDIU and increased rating issues are best analyzed as part of the same claim, bifurcation of the TDIU and increased rating aspects of the claim is generally within the Secretary's discretion). The appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND For the following reasons, the Board finds that the Veteran's appeal must be remanded to ensure that he is accorded full compliance with the statutory duty to assist. An August 2011 statement from a VA Mental Health Counselor indicates that the Veteran attended counseling sessions at the VA Community Based Outpatient Clinic (CBOC) in Watertown, New York. The letter specifically states that the Veteran attended four sessions between January 2011 and March 2011. Upon review, the Veteran's electronic claims file contains a January 25, 2011 Social Work Note from the Watertown CBOC. The records referable to remaining three treatment sessions that were identified by the VA Mental Health Counselor have not been associated with the Veteran's claims file. On Remand, the Veteran's CBOC records and any recent treatment records should be obtained and associated with his claims folder. 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 pertinent) In addition, the Veteran was afforded a VA examination to determine the current severity of his service-connected PTSD in August 2011. After conducting a clinical examination and reviewing the claims file, the VA examiner stated that the Veteran's PTSD caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Following the VA examination, the Veteran asserted that his PTSD resulted in total occupational impairment because he "lost every job [he] ever had because [he] [could not] get along with the boss." See the May 2012 Notice of Disagreement. The Veteran also stated that his PTSD resulted in significant social impairment because he did not have any close associates and never socialized. Since the Veteran has argued that his disability is more severe than reflected in the August 2011 VA examination, and since the claim is being remanded for additional development, the Board finds that a new VA examination should be performed. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet.App. 400, 403 (1997); VAOPGCPREC 11-95. Finally, the Board notes that the claim for a TDIU rating is inextricably intertwined with the increased rating claim, as the resolution of that claim might have bearing upon the claim for TDIU. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for his service-connected PTSD. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. A specific request should be made for any outstanding VA medical records, to include his records from the Watertown, New York CBOC from January 2011 to April 2011. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the Veteran's VA claims folder. 2. Then, the Veteran should be afforded a VA examination to ascertain the current severity of the service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected PTSD. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. In particular, the examiner should indicate whether the Veteran has occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or, total occupational and social impairment. The examiner should further address the effect of the Veteran's service-connected PTSD on his employability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history [,]' 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. Further development may include affording the Veteran a VA examination or obtaining a medical opinion in connection with his claim for TDIU. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court 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). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).