Citation Nr: 1332743 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-06 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased evaluation for service-connected posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Chisholm Chisholm & Kilpatrick, Attorneys at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that the issue of entitlement to an increased rating for the Veteran's service-connected PTSD was most recently before it in December 2011, at which time the Board denied a rating in excess of 50 percent. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the Court issued a memorandum decision wherein it vacated the Board's December 2011 decision and remanded the matter for further proceedings. On remand from the Court, the Veteran submitted a private vocational assessment, dated in August 2013, along with a waiver of consideration by the agency of original jurisdiction (AOJ), which was purported to substantiate entitlement to a rating in excess of 50 percent for PTSD, as well as a rating of TDIU. With regard to the issue of entitlement to TDIU, the Board notes that that issue was raised by the Veteran in July 2009 and entitlement to such a rating was denied by the RO in a March 2010 rating decision. The Veteran did not disagree with that decision. That fact notwithstanding, the Court has held that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, as the Veteran has again submitted evidence relevant to whether he is capable of substantially gainful employment, and because he has specifically asserted entitlement to TDIU, the question remains part of the claim on appeal. Id. at 453-54 (stating that entitlement to TDIU is "not a separate claim for benefits," but is "part of a claim for increased compensation"). Notably, although the Veteran waived AOJ consideration of the newly submitted evidence and requested that the Board proceed with a decision on the matter, a review of the vocational assessment suggests the possible existence of relevant outstanding treatment records. The vocational consultant indicated that during phone conversations with the Veteran in July 2013, the Veteran reported that he was last seen by a VA psychiatrist "eight months ago mainly for refills of his medication." The most recent VA treatment records contained in the paper claims folder are dated in November 2010 and a review of the Veteran's Virtual VA file fails to reveal any treatment records. Accordingly, because the vocational assessment raises the possibility of outstanding relevant records, the Board finds that a remand of the matter is necessary to ensure that all relevant VA treatment records dated since November 2010 are obtained and associated with the claims folder. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). The Board finds that on remand, the Veteran should also be scheduled for another VA examination, as more than two years have now passed since the most recent VA examination. The evidence has become stale, at least as it pertains to the current level of disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994) (holding that "[w]here an increase in the disability rating is at issue, the present level of disability is of primary importance"). Regarding the issue of entitlement to TDIU, that matter it is inextricably intertwined with the claim being remanded because the evidence developed on remand and the outcome of increased rating claim may have a bearing upon whether TDIU is warranted. As such, the Board will defer action on the issue of entitlement to a TDIU until after the issue of entitlement to a rating in excess of 50 percent for service-connected PTSD has been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED to the AOJ for the following action: 1. The record indicates that the Veteran continues to receive treatment at the Phoenix, Arizona, VA Health Care System. A query should be made to that facility for any records relevant to the Veteran's claim for an increased rating for his service-connected PTSD, to include any records relevant to the issue of employability, from November 2010 to the present. 2. Upon completion of the above-requested development, the Veteran should be scheduled for a VA examination in connection with his claim for a higher evaluation for his service-connected PTSD. The examiner should make all findings necessary to apply the rating criteria, paying particular attention to assessing the severity of any psychiatric symptoms and assigning a global assessment of functioning (GAF) score under Axis V, with its meaning explained in the context of the rating criteria. If the examiner's assigned GAF score differs from those previously recorded, which during the applicable period have ranged from 42 to 55, the examiner should be asked to reconcile his or her findings and conclusions with the GAF scores previously recorded and should explain, to the extent possible, the differences in these GAF scores. The examiner should also comment on the Veteran's employment and employability. A detailed history should be taken regarding the Veteran's employment and education, and the entire claims file should be reviewed. The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with the Veteran's education and occupational experience on account of his service-connected disabilities. (In addition to PTSD, the Veteran is service-connected for a hearing loss and tinnitus.) If the examiner's conclusions and opinions differ with any conclusions or opinion already of record, the rationale for these differences must be explained, especially with respect to any findings regarding employability. A complete rationale should be provided for all opinions expressed. 3. After undertaking any other development deemed appropriate, the AOJ should review the record, to include all evidence in the claims file that has not previously been addressed in the most recent supplemental statement of the case (SSOC) of record, and readjudicate the issue of entitlement to an evaluation greater than 50 percent for the Veteran's service-connected PTSD. The Veteran's claim for an increased rating for his service-connected PTSD must be considered on a de novo basis in light of the additional evidence and the potential applicability of staged ratings should be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The AOJ must also specifically consider whether a rating of TDIU is warranted, or whether referral for extraschedular consideration is appropriate, as part of its readjudication of the Veteran's increased rating claim. If any benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. (If a TDIU rating is not granted, the SSOC should address this issue.) By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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 case 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. 2013). _________________________________________________ J. A. MARKEY 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).