Citation Nr: 1333069 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-21 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Esq. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to September 1953. He is the recipient of the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated June 2007 and March 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a June 2011 Board decision, the claims were remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in a January 2012 supplemental statement of the case (SSOC). In an August 2012 decision, the Board granted an initial disability rating of 50 percent, but no higher, for the service-connected PTSD and denied the claim of entitlement to TDIU. The Veteran appealed the August 2012 decision to the United States Court of Appeals for Veterans Claims (the Court). In March 2013, the Court partially vacated the Board's decision and remanded the case to the Board for further consideration pursuant to a Joint Motion for Remand. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO. VA will notify the Veteran if further action on his part is required. REMAND With respect to the Veteran's claim of entitlement to an initial disability rating in excess of 50 percent for the service-connected PTSD, the parties to the Joint Motion for Remand determined that VA failed to satisfy its duty to assist. See 38 U.S.C.A. §§ 5103A, 5107 (West Supp. 2012); 38 C.F.R. § 3.159 (2013). Specifically, the parties determined that remand of the initial rating claim was warranted so that the Board may adequately address the portion of the June 2004 private psychiatric evaluation that attributed the Veteran's cognitive deficits to "the deleterious effects of chronic anxiety." See the psychiatric evaluation by Dr. G. dated June 2004. Additionally, the parties agreed that the August 2011 VA psychological examination, relied upon in the Board's August 2012 decision, "is inadequate because the examiner did not adequately distinguish the symptomatology associated with [the Veteran's] service-connected PTSD versus his nonservice-connected conditions such as dementia, Alzheimer's disease, and Parkinson's disease." The parties therefore determined that an additional examination or opinion is warranted. Accordingly, pursuant to the Joint Motion, the Board finds that the Veteran's initial rating claim must be remanded for a VA examination in order to address the current severity of the Veteran's symptoms as well as the symptomatology associated with his service-connected PTSD versus his nonservice-connected disabilities. To this end, the Board recognizes that the Veteran's attorney recently submitted an August 2013 letter from clinical psychologist, Dr. C.L.R. In the letter, Dr. C.L.R. opined that the Veteran's "cognitive decline is more likely than not attributable to his PTSD." See the letter from Dr. C.L.R. dated August 2013. In addition, Dr. C.L.R. determined that the Veteran's service-connected PTSD has rendered him unemployable since May 1990. Id. Thus, the VA examiner should review the August 2013 letter in rendering his/her conclusions concerning the nature and etiology of the Veteran's psychological symptoms to include cognitive deficits. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). With respect to the TDIU claim, the parties to the Joint Motion indicated that said claim was inextricably intertwined with the initial rating claim and, as such, required remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, the Board will defer consideration of the TDIU claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dating from July 2011. All such available documents should be associated with the claims file. 2. Then, schedule the Veteran for a VA psychiatric examination to determine the nature and extent of his service-connected PTSD. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected PTSD. The results of any such testing and studies should be included in the examination report. The examiner should provide a detailed account of all manifestations of the service-connected PTSD found to be present. In addition, a Global Assessment of Functioning (GAF) score should be assigned, along with an explanation of the number assigned to the Veteran. To the extent possible, the examiner should distinguish between symptomatology associated with the nonservice-connected major depressive disorder, Parkinson's disease, cognitive memory disorder/dementia, and Alzheimer's disease versus that associated with service-connected PTSD. In rendering his/her findings, the examiner should specifically explain the etiology of the Veteran's cognitive limitations. In this regard, if the examiner is unable to differentiate between symptomatology attributed to the nonservice-connected disabilities and the service-connected PTSD, he or she should so explicitly state. Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. In rendering his/her opinion, the examiner should specifically discuss the findings set forth in the August 2013 letter from Dr. C.L.R. as well as the June 2004 psychological evaluation by Dr. G. A complete rationale should be given for all opinions and conclusions expressed. 3. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ THOMAS J. DANNAHER 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).