Citation Nr: 1333913 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-16 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia 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 evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and V.E. ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By way of background, this appeal arises from the Veteran's initial grant of service connection in a June 2005 rating decision. At that time, the RO assigned a 30 percent rating. Within the one year appeal period, specifically in December 2005, the Veteran submitted additional relevant medical records in support of his claim. As a result, the RO provided the Veteran with an additional VA examination, and readjudicated the claim in August 2006. That decision granted an increased rating to 50 percent, effective the date of the grant of service connection. Similar to his response to the initial rating decision, the Veteran again submitted additional medical evidence in October 2006, and argued that his disability should be rated at the 70 percent level. The RO again readjudicated the claim in May 2007, granting a temporary total evaluation based on hospitalization over 21 days, and then reestablishing the 50 percent rating thereafter. The Veteran filed the instant appeal with the May 2007 rating decision. Here, the propriety of the Veteran's disability rating for his service-connected PTSD has been in continuous question since the initial grant of service connection. Therefore, while it is the May 2007 rating decision which is on appeal, the issue involves the Veteran's initial rating. Furthermore, because the maximum allowable rating has not been granted, the issue remains in appellate status. The May 2007 rating decision also denied entitlement to a total disability rating based on individual employability (TDIU). The Veteran included this issue in his May 2007 notice of disagreement, and the RO issued a statement of the case in April 2009 regarding both the increased rating and the TDIU. In his May 2009 substantive appeal the Veteran limited his appeal to the issue of entitlement to an increased rating in excess of 50 percent for his PTSD. Regardless, in his hearing before the undersigned in June 2013, the Veteran testified as to being unable to work due to his service-connected PTSD. A transcript of the hearing is included in the Virtual VA file associated with the Veteran's claim. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran asserts that he is unemployable due to the disability currently on appeal, the issue of a TDIU is before the Board. The Virtual VA and VBMS electronic claims files associated with the Veteran's claim have been reviewed and all relevant evidence therein taken into account. 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 The Board is of the opinion that additional development is required before the Veteran's claim for an increased rating is decided. The Veteran's most recent medical examination to determine the current degree of severity of his PTSD was performed in January 2007. In his June 2013 testimony before the undersigned, the Veteran asserted that his condition has become worse. VA in- and out-patient treatment records from January 2007 forward indicate a possible worsening of his condition since his last examination. In light of this evidence suggesting that the Veteran's disability has increased in severity since the last examination, the Board has determined that the Veteran should be afforded another VA examination to determine the current degree of severity of his PTSD. With regard to the implied claim of entitlement to TDIU, this claim must be developed prior to appellate disposition. The Veteran should be provided with the proper notice and claim form in case his circumstances have changed since his initial claim in October 2006. While on remand, efforts must be made to obtain any relevant VA treatment records from January 2012 forward. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Obtain any further VA treatment records concerning the Veteran's PTSD, to include from January 2012 forward and Salisbury VA Medical Center in-patient records from June 2008 to September 2008. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide the records, if able. 3. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with an appropriate medical professional in order to ascertain the current severity of his service-connected PTSD. The claims file should be made available to and reviewed by the examiner. A note that it was reviewed should be included in the examination report. The examiner is also asked to review the Veteran's service-connected disabilities and determine, whether they cause, alone or in combination with each other, the Veteran to be unable to secure or follow a substantially gainful occupation. If additional examination is required, such should be scheduled. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK 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) (2012).