Citation Nr: 1332470 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-34 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). (The issues of entitlement to service connection for bilateral hearing loss and tinnitus will be addressed in a separate decision). REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, and a September 2008 rating decision issued by the RO in Cleveland, Ohio. The case is currently in the jurisdiction of the RO in Houston, Texas. The claims file reflects that the Veteran was previously represented by Texas Veterans Commission (as reflected in a July 2012 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In July 2013, the Veteran filed a VA Form 21-22, appointing Kenneth M. Carpenter, Attorney at Law, as his representative, for five specific issues, which includes those listed on the title page. Therefore, Mr. Carpenter is recognized as the Veteran's attorney in this appeal before the Board. The Veteran indicated on an October 2007 VA Form 9 (which was submitted in response to the September 2007 statement of the case that addressed the TDIU issue) that he wished to testify at a Board hearing. However, in July 2013 correspondence, the Veteran's attorney canceled this hearing request. Therefore, with respect to the issues listed on the title page of this decision, the Veteran's request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e) (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) paperless claims file associated with the Veteran's claims. A review of the documents in such file reveals an August 2013 rating decision in which the Veteran was granted service connection for various disabilities resulting in a combined disability rating of 70 percent effective July 24, 2012. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). As an initial matter, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his PTSD. In this regard, he was most recently afforded a VA examination in December 2009. Since such time, additional VA treatment records suggesting a possible increase in PTSD symptomatology, such as nightmares, have been associated with the claims file. Additionally, psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." According to DSM-IV, scores ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers). A GAF score from 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score between 31 and 40 is assigned when an individual presents either some impairment in reality testing or communication (e.g., speech is at time illogical, obscure or irrelevant); or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friend, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home and is failing in school). A GAF score between 21 to 30 reflects behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends). At the time of the December 2009 VA examination, the Veteran was assigned a GAF of 45. Notably, the Veteran was also assigned a GAF of 45 upon VA examination in February 2008. Previous VA examination reports dated in October 2006, August 2005, and October 2004 showed GAF scores of 58, 55, and 55, respectively. The claims file also includes a March 2007 private psychiatric examination report which was performed in connection with the Veteran's claim for Social Security disability benefits. This examination report shows a GAF score of 30. In light of the possible worsening of the Veteran's PTSD symptomatology as well as the discrepancy in GAF scores, the Board finds that a new examination is necessary in order to decide his claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). With regard to the TDIU claim, a remand is also required for to obtain a medical opinion. The record shows that the Veteran retired on July 31, 2005 after 25 years of employment as an electrician with a local government. The Veteran contends that he retired early as a result of his PTSD. Significantly, the Veteran is in receipt of Social Security disability benefits for his PTSD effective October 2006. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As above, the Board notes by rating decision dated in August 2013 the Veteran was granted service connection for diabetes mellitus type II with erectile dysfunction, evaluated as 20 percent disabling; peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling, all effective July 24, 2012; and hypertension with diabetic nephropathy, evaluated as noncompensably disabling, effective August 27, 2013. Additionally, as noted previously, the Veteran is also currently in receipt of a 50 percent rating for his PTSD, effective February 13, 2004. As a result of the August 2013 rating decision, the Veteran has a combined disability rating of 70 percent, effective July 24, 2012. As such, he meets the schedular criteria for a TDIU as of July 24, 2012. VA has not yet obtained a medical opinion regarding the Veteran's employability and the record does not contain a medical opinion as to whether the Veteran is unable to secure and maintain gainful employment (physical or sedentary) in light of his service-connected disabilities. The Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1994). Therefore, on remand, an opinion regarding the Veteran's employability should be obtained. Finally, the Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records for his service-connected disabilities, to include PTSD. Thereafter, all identified records, to include those from the Houston, Texas, VA Medical Center dated from January 2012 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding VA or non-VA treatment records for his service-connected disabilities, to include PTSD. Thereafter, all identified records, to include those from the Houston, Texas, VA Medical Center dated from January 2012 to the present, should be obtained. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD. Based on examination of the Veteran and review of the record, the examiner should conduct a longitudinal review of the record and (to the degree possible) reconcile the discrepancies in the degree of psychiatric impairment found by VA and private examiners in the claims file. The examiner is further requested to specifically comment on the various GAF scores assigned throughout the appeal period indicating (with citation to symptom notations) whether such are consistent with the PTSD symptoms contemporaneously shown. The examiner should specifically discuss the discrepancy in GAF scores assigned to the Veteran during the course of the appeal, ranging from 30 in March 2007 to 58 in October 2006. Finally, the examiner should also specifically address the impact such disability has on the Veteran's employability. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, the Veteran's claims file should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, i.e., PTSD, diabetes mellitus type II with erectile dysfunction, peripheral neuropathy of the bilateral lower extremities, and hypertension with diabetic nephropathy, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. All opinions expressed should be accompanied by supporting rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).