Citation Nr: 1333188 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-19 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling prior to December 22, 2009, and 70 percent disabling thereafter. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) prior to December 1, 2010. 3. Entitlement to a TDIU from December 1, 2010. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran has active service from August 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his May 2010 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge sitting at the local RO. However, in an August 2011 statement, the Veteran withdrew his hearing request. 38 C.F.R. § 20.704(e) (2012). By rating decision in February 2012, the RO increased the PTSD disability rating to 70 percent, effective December 22, 2009. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the issue remains in appellate status and has been characterized as set forth on the front page of this decision. The Board observes that, as there appeared to be some question as to the exact date when the Veteran retired, in February 2012, the RO sent a letter to the Veteran requesting that he complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. In a July 2012 supplemental statement of the case, the RO denied the Veteran's claim for a TDIU as it was unclear if the Veteran was still employed. Subsequently, in August 2012, the Veteran submitted a completed VA Form 21-8940 indicating that he was last employed on November 30, 2010. In a subsequent October 2013 Informal Hearing Presentation, the Veteran's representative asserted that the Veteran should be awarded a TDIU due to his service-connected PTSD from November 30, 2010, his last date of employment. Even though the RO did not consider this application, as the Board herein grants a TDIU rating as of the date following Veteran's last day of employment, December 1, 2010, the Board finds no prejudice to the Veteran in the Board's consideration of such evidence. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to an increased rating for PTSD and entitlement to a TDIU prior to December 1, 2010 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Since December 1, 2010, the Veteran's service-connected PTSD has rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Effective December 1, 2010, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). With respect to the claim for a TDIU from December 1, 2010, there is no need to undertake any review of compliance with the VCAA and implementing regulations since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Veteran has asserted that his service-connected PTSD renders him unemployable. In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of a total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where one disability is ratable at 60 percent or more, or where there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). As noted above, in a February 2012 rating decision, the RO awarded a 70 percent disability rating for the Veteran's PTSD, effective December 22, 2009. As such, he meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) as of that date. However, the Board must still determine whether the Veteran's service-connected PTSD results in impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Also, as discussed above, the Veteran filed a VA Form 21-8940, Application for a TDIU in August 2012. On that form, he indicated that he was last employed on November 30, 2010. The medical evidence of record includes a January 2011 VA examination report, which was prepared shortly after the Veteran left his employment. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran's severe PTSD symptoms at least as likely as not rendered him unemployable. The examiner observed that the Veteran had significant difficulty interacting appropriately in a work environment due to irritability, verbal altercations, social isolation and homicidal ideation. He also had significant difficulty sustaining adequate levels of concentration, pace and memory in the work environment. Importantly, he forgot to complete job tasks. The examiner determined that the Veteran's ability to perform sedentary and physical employment was equally impaired by the Veteran's social and concentration/memory problems. Therefore, based on the VA examiner's opinion, when resolving all benefit of the doubt in the Veteran's favor, the Board must conclude that the Veteran is unemployable due to his service-connected PTSD and, in turn, entitlement to TDIU is warranted. Again, the record shows that the Veteran reported that he last worked on November 30, 2010. As such, the appropriate effective date for his TDIU is the day after he was last employed, i.e., December 1, 2010. 38 U.S.C.A. § 5107(b). ORDER Effective December 1, 2010, a TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND A review of the record indicates that further development is necessary with respect to the remaining issues on appeal. Initially, the Board observes that it appears that the Veteran was afforded a VA examination to address the severity of his PTSD in May 2009. However, the current examination report associated with the claims file pertains to a different Veteran. While the top section of the report provides the Veteran's name, service dates, and Social Security number, the actual examination report clearly shows that the examination was an initial evaluation for PTSD of another Veteran. Moreover, in his notice of disagreement, the Veteran indicated that his examination was done by Dr. L. However, the examiner listed on the examination report was Dr. K. P. Importantly, this examination report for another Veteran was relied upon by the RO in its June 2009 rating decision, which continued a 50 percent disability rating for the Veteran's PTSD. As such, this case must be remanded in order for the agency of original jurisdiction (AOJ) to obtain and associate with the claims file the Veteran's May 2009 VA examination report and, thereafter, readjudicate the issue of an increased rating for PTSD based on the correct VA examination report. Moreover, with respect to the issue of entitlement to a TDIU prior to December 1, 2010, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Board has determined herein that a TDIU is warranted from the day after the Veteran was last employed. Nevertheless, as the Veteran has asserted that he has been unemployable throughout the course of the appeal, the claim for an increased rating for PTSD is inextricably intertwined with his claim for a TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As such, this issue must also be remanded to the AOJ. Lastly, the Veteran's claims file only includes VA treatment records dated to December 2010. In light of the need to remand, the Board finds that efforts to obtain additional VA treatment records dated from December 2010 to the present should be made. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records dated from December 2010 to the present. 2. Obtain the Veteran's correct May 2009 VA examination report and associate it with the claims file. If such examination is unavailable, any and all negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 3. After completing the above, and any other development deemed necessary as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, to include obtaining a recent VA examination if necessary, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the issues remain denied, the Veteran and his representative 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). This claim 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. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs