Citation Nr: 1332290 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-37 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating based on individual unemployability due to the service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted service connection and assigned a disability rating of 30 percent for PTSD. The Veteran's claim for PTSD includes an inferred claim for TDIU, which is also under the Board's jurisdiction. A claim for TDIU may be raised directly by the claimant or inferred from the record and is not considered separate from the underlying claim but, instead, is an attempt to obtain an appropriate rating for the disability. See Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 200); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the current case, the Veteran has asserted that he was disciplined, lost his job, and not promoted to supervisor because of his PTSD related symptoms. Therefore, the Veteran's claim for an increased rating for PTSD is deemed to include consideration of whether TDIU is warranted. 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 Further development is necessary to assist the Veteran with his claims for an initial rating in excess of 30 percent and for TDIU. Specifically, VA should obtain current VA mental health treatment records from July 2010 forward. From January 2009 to July 2010, the Veteran was regularly treated for his PTSD and cannabis abuse, including individual and group counseling sessions. There is no indication from the treatment records in July 2010 that the psychological treatment was or would be discontinued. Although the Virtual VA claims file includes treatment records from August 2011 to September 2012, these records seem only pertinent to hearing loss and do not contain any specific mental health treatment. Therefore, the record is incomplete and VA should obtain and associate any outstanding mental health treatment records to satisfy its duty to assist the Veteran. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Moreover, a new VA examination would assist in the accurate assignment of a disability rating for the Veteran's PTSD. Throughout his treatment, the Veteran has endorsed a variety of symptoms and differing levels of social and occupational difficulty. Further, VA examiners and treating providers assigned Global Assessment of Functioning (GAF) scores ranging from 40 to 55, representing moderate to severe symptoms and impairment. This range of scores was observed and assigned as closely as one month within one another. See VA treatment records from 1/09 to 2/09. Additionally, as mentioned above, the Veteran's claim for PTSD includes an inferred claim for TDIU based on statements he made about his difficulty in his employment. See Jackson, 587 F.3d at 1109-10; see also Rice, 22 Vet. App. at 453-54. A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. In determining unemployability for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). Although there is evidence the Veteran had disciplinary issues and lost his job due to his PTSD symptoms, it is unclear whether he is unemployable due to his PTSD for VA purposes. Therefore, all appropriate notice and assistance as to the TDIU claim should be provided, and this issue should be adjudicated. Accordingly, the case is REMANDED for the following action: 1. Send a notice letter to the Veteran laying out the specific requirements for substantiating a claim for TDIU and allow him a reasonable amount of time to respond. Obtain and associate with the claims file any evidence pertaining to the Veteran's claim for TDIU that is known or reasonably ascertainable. 2. Obtain and associate with the claims file any outstanding VA psychological treatment records from July 2010 forward. 3. After completing the above tasks, schedule the Veteran for a VA examination to include a current assessment of his PTSD symptoms, as well as his employability. The examiner should review the entire claims file, including a copy of this remand, and any relevant records in an electronic format. Such review should be noted in the examination report. All necessary tests and procedures should be conducted. The examiner should respond to the following: a. Measure and record the Veteran's current PTSD symptoms, including a GAF score. Please attempt to explain or reconcile the variance in GAF scores assigned between January 2009 and April 2010. If the Veteran experienced any shift or change in the severity of symptoms, please explain when and how the change affected his functioning, to the extent practicable. b. State whether the Veteran is unable to secure and maintain a substantially gainful occupation by reason of his PTSD. Consideration should be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. The examiner must provide reasons for each opinion offered, and all lay and medical evidence of record should be considered. If any requested opinion cannot be offered without resorting to speculation, the examiner should explain why a non-speculative opinion cannot be offered, and state whether the inability to provide the needed opinion is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. 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). (CONTINUED ON NEXT PAGE) 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. 2013). _________________________________________________ ERIC S. LEBOFF 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).