Citation Nr: 1333043 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-33 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU rating). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD and assigned a 50 percent disability rating, effective from August 18, 2008. In April 2011, the Board issued a decision which denied an initial evaluation in excess of 50 percent for PTSD. The Veteran appealed the Board's decision to the Court. In an October 2012 memorandum decision, the Court set aside the Board's April 2011 decision, and remanded this issue to the Board for further adjudication. The record reflects that in August 2011, additional pertinent evidence was received from the Veteran. As the Veteran has waived initial RO review of this evidence, the Board will consider it herein. 38 C.F.R. § 20.1304. In the letter regarding the Veteran's May 2011 evaluation, the private psychologist, Dr. Anderson, indicated that the Veteran was deemed to be a threat in any work environment, and that his cognitive difficulties associated with his PTSD, were likely to interfere with his ability to maintain employment. Thus, the record arguably raises assertions that the Veteran may be unable to work due to his service-connected PTSD. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the issue of TDIU is raised by the record and is part and parcel of the increased rating claim, and is properly before the Board. See Rice v. Shinseki, supra. Thus, the issues on appeal are as noted on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted above, this matter comes before the Board pursuant to the October 2012 memorandum decision in which the Court set aside the Board's April 2011 decision and remanded this issue to the Board for further adjudication. In the memorandum decision, the Court noted that the Veteran argued that the Board erred in finding that he complained of suicidal ideation only in the January 2009 VA examination. The Court found that the record supported the Veteran's argument, noting that in addition to the January 2009 VA examination report reflecting suicidal ideation, a July 2009 report also reflects this symptom. The Court found that the Board's specific statement that suicidal ideation was reflected in only one medical report indicated that the Board placed some weight on that misstatement of fact. Thus, the Court concluded that the Board committed prejudicial error in failing to provide the Veteran the benefit of a decision on the correct facts. In May 2011, the Veteran underwent an evaluation by a private psychologist, Dr. Anderson. In the report describing the evaluation's findings, the Veteran's reported PTSD symptoms were listed, and suggest that his PTSD may have worsened since the last VA examination in July 2009 (as well as the private evaluation conducted in July 2009). Although the length of time that has passed since his last VA examination is not alone determinative of whether a more current VA examination is warranted, in this case the Board concludes that there are other factors, including the private psychologist's report of the May 2011 evaluation, regarding the severity of the Veteran's PTSD, which warrants him being scheduled for an updated VA examination to evaluate the current severity of his PTSD. On remand, attempts should be made to obtain any and all recent VA or private treatment records for the Veteran, related to his PTSD. With regard to the issue of entitlement to a TDIU rating , since a favorable decision with regard to the issue remanded above may have an impact on the TDIU rating claim, such issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board therefore will defer appellate consideration of the claim of entitlement to a TDIU rating, pending the resolution of the claim for a higher initial rating for PTSD. In addition, the Veteran has not received appropriate notice regarding the TDIU rating claim, and this should be done on remand. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter pertaining to the issue of entitlement to a TDIU. The Veteran should also be accorded an opportunity to submit additional argument and evidence on this issue. 2. Request that the Veteran provide identifying information regarding any recent VA and/or private treatment for his PTSD. Attempt to obtain records from any named treatment sources, pertaining to treatment the Veteran has received for PTSD, and associate any such records with the Virtual VA folder, or, if not available, with the Veteran's claims folder. Negative replies should be requested. 3. Then, schedule the Veteran for an appropriate VA examination to ascertain the current severity of his service-connected PTSD. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner must describe the nature and severity of all symptoms of the Veteran's PTSD and any other current psychiatric disorder. The examiner should also comment on the impact of the Veteran's PTSD on his ability to function both occupationally and socially. A specific medical opinion regarding the degree to which the Veteran's PTSD impacts his employability (with detailed explanation of rationale) is necessary. The examiner must explain the rationale for all opinions given. If any requested opinions cannot be made without resort to mere speculation, the examiner should so state and explain why. 4. Thereafter, readjudicate the issues on appeal (as are listed on the title page of this remand). If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) which addresses all evidence submitted, and be afforded the appropriate opportunity to respond thereto. 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 claims. 38 C.F.R. § 3.655 (2013). He has the right to submit additional evidence and argument on the matters that 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THERESA M. CATINO 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) (2012).