Citation Nr: 1333733 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-22 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with depression. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to July 1971. This appeal to the Board of Veterans' Appeals (Board) arises from a January 2008 rating decision in which the RO, in Columbia, South Carolina granted service connection for PTSD and assigned an initial 50 percent evaluation from February 27, 2006. A temporary total rating was assigned from February 21, 2007, to April 30, 2007, for a period of hospitalization, and the 50 percent rating was continued from May 1, 2007. The issues on the title page have been recharacterized to reflect that the evidence raises the issue of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran was afforded a hearing before a decision review officer (DRO) at the RO in September 2009. A transcript of that proceeding has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. The most recent VA examination for the Veteran's PTSD was in February 2009, over four years ago. At his September 2009 DRO hearing, the Veteran reported that his PTSD had worsened since that examination. He also testified that he had additional symptoms that were not noted in the February 2009 VA examination report. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Because of the length of time since the Veteran's last examination, and his testimony of additional and worsening symptoms, a contemporaneous examination is needed to ascertain the current severity of the PTSD. Further, the Veteran indicated that he is not currently working and it is partially due to his PTSD. The claim file contains an April 2007 VA discharge note that shows a Global Assessment of Functional (GAF) score of 35, and a VA clinician's finding that the Veteran is not employable due to chronic severe PTSD, permanent with persistent symptoms and frequent flare-ups having an adverse impact on several of his physical illnesses. The Board, however, observes that the January 2008 VA examination report shows the Veteran stopped working due to a leg injury and subsequent complications. The VA examiner also determined that the PTSD only had a moderate affect on the Veteran's occupational functioning. At a VA examination in February 2009, the examiner determined that the PTSD causes moderate to considerable impairment of occupational functioning. Neither VA examiner provided an opinion as to whether the PTSD precludes gainful employment. In light of the evidence, an opinion is needed. As this case must be remanded for the foregoing reasons, any outstanding and pertinent VA and private treatment records should be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice on the criteria necessary to establish entitlement to TDIU. 2. Request that the Veteran provide names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his PTSD. After securing any necessary authorizations for release of this information, any records that are not currently included in the claims file should be obtained and added to the file, including VA treatment records dated from December 2012 to the present. 3. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of his PTSD and to evaluate the impact of PTSD on his employability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must conduct all indicated tests and studies, report all pertinent findings, and estimate the Veteran's current GAF Scale score. The examiner must also opine as to whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD, without regard to his age or any nonservice-connected disabilities. In doing so, the examiner is asked to consider the April 2007 VA discharge note in which a VA clinician stated the Veteran is not employable due to chronic, severe PTSD. If necessary, reconcile this finding with the current examination findings. If the examiner opines that the Veteran's PTSD does not render him unemployable, the examiner must suggest the type or types of employment in which he would be capable of engaging, given his current skill set and educational background. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination reports. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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 of Veterans' Appeals 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). _________________________________________________ D. JOHNSON Acting 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).