Citation Nr: 1334862 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 13-03 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to December 12, 2011, in excess of 70 percent from December 12, 2011, to October 18, 2012, and in excess of 30 percent as of October 19, 2012, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from March 1992 to March 1997, October 2001 to September 2002, July 2003 to October 2003, March 2005 to June 2006, and November 2006 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in part, granted service connection for PTSD and assigned an initial 10 percent disability rating, effective August 27, 2010 (while the Veteran was still in service). At such time, documentation revealed that he last served on active duty as of July 2007. Thereafter, in a July 2012 notification letter that accompanied July 2012 rating decision pertaining to unrelated issues, the RO noted that a review of the Veteran's file showed that he was on active duty until May 2011. It was observed that the previous rating decision granted benefits effective August 27, 20120; however, such was in error as a service member may not receive VA compensation while on active duty. Therefore, the July 2012 rating decision corrected such error and his corrected original award date was now June 1, 2011. Subsequently, by a November 2012 rating decision, the RO increased the Veteran's disability rating for PTSD to 30 percent effective June 1, 2011 (the corrected date of service connection), 70 percent effective December 12, 2011, and 30 percent effective October 19, 2012. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Although the RO awarded higher ratings for PTSD during the pendency of this appeal, inasmuch as higher ratings are available for the disability during such periods, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as to evaluation of PTSD as set forth on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the November 2012 statement of the case addressed issues in addition to the Veteran's claim for a higher initial rating for his PTSD, to include an increased rating for right torn rotator cuff and service connection for left hip, right hip, and back disorders; however, in his January 2013 substantive appeal (VA Form 9), he limited his appeal to his claim for a higher initial rating for PTSD. Therefore, as the Veteran did not perfect his appeal as to the remaining issues, they are not properly before the Board. As the Veteran is challenging the rating assigned for his service-connected PTSD and the record raises the possibility that he is unemployable because of such service-connected disorder, the determination as to whether he is entitled to a TDIU is part and parcel of the rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this regard, a review of the claims file shows that the Veteran has been unemployed since his May 2011 discharge from military service. While a claim for TDIU was denied in a July 2012 rating decision, such has been raised again in the context of the Veteran's initial rating claim. Moreover, since such rating decision, the Veteran was awarded increased initial ratings for his PTSD (at the time of the July 2012 rating decision, his PTSD was rated as 10 percent disabling) in the November 2012 rating decision. Therefore, the issue of entitlement to TDIU has been raised by the record and, as such, has been included on the title page of this decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO in September 2013. A transcript of the hearing is associated with the claims file. At such time, the Veteran waived agency of original jurisdiction (AOJ) consideration of the evidence associated with the claims file since the issuance of the November 2012 supplemental statement of the case, which included VA treatment records dated through August 2013. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) paperless folder associated with the Veteran's claim. A review of the documents in such folder reveals VA treatment records dated from November 2012 through August 2013, and a copy of the transcript from the September 2013 Board hearing. 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 via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and severity of his PTSD, as well as to differentiate between any psychiatric symptoms associated with nonservice-connected disabilities. Initially, the Board notes that the Veteran was last examined by VA in October 2012. At such time, the only symptoms noted were depressed mood and anxiety. However, since the October 2012, the Veteran has indicated that his PTSD symptoms have increased. Specifically, at his September 2013 Board hearing, he testified that he experienced suicidal feelings, panic attacks, obsessional thoughts, homicidal ideation, and difficulty with concentration and memory. Therefore, as there has been a suggestion that the Veteran's PTSD has increased in severity since the October 2012 VA examination, the Board finds that he should be afforded a contemporaneous VA examination. The Board also notes that, in addition to PTSD, the record shows diagnoses of alcohol dependence, alcohol induced mood disorder, major depressive disorder, anxiety disorder, and bipolar disorder. An October 2012 VA psychiatric examiner noted that the Veteran's primary psychiatric disorder was PTSD. The examiner also noted that the Veteran was consuming 10 to 24 beers per day, was unemployed, and was homeless due to his alcohol dependence. The examiner further reported that the Veteran was not capable of managing his financial affairs due to his chronic alcohol dependence. As such, a question has arisen as to extent of impairment attributable solely due to the Veteran's PTSD, and whether it is possible to distinguish between the symptoms and impairment that are be attributable to his service-connected PTSD versus his nonservice-connected alcohol dependence, alcohol induced mood disorder, major depressive disorder, anxiety disorder, and bipolar disorder. See Waddell v. Brown, 5 Vet. App. 454 (1993) (there may be a breach in the duty to assist when there are variously diagnosed psychiatric disorders, but none of the examinations fully described the degree of disability attributable to each psychiatric disorder). Because the medical evidence currently of record does not contain sufficient information to make these determinations, the Board finds that the Veteran should undergo a comprehensive VA psychiatric evaluation to obtain a medical opinion on these dispositive issues. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board notes that if it is medically determined that the impairment attributable to nonservice-connected and service-connected conditions cannot be distinguished, the benefit-of-the-doubt doctrine requires that all such impairment be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Furthermore, during the September 2013 Board hearing the Veteran indicated that he was in the process of filing a claim for Social Security disability benefits. Because Social Security records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, a remand is necessary in order to determine whether the Veteran is in receipt of Social Security disability benefits and, if so, to obtain these records. Moreover, as noted previously, the Veteran has alleged that he is unable to work due to his PTSD. The record shows that the Veteran retired from the military on May 31, 2011 after approximately 13 years of military service. The Veteran contends that he was forced out of the military as a result of his PTSD. Specifically, in a September 2011 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) the Veteran indicated that he last worked in May 2011 due to his service-connected PTSD, shoulder disorders, hip disorders, back disorder, and headaches. He also indicated that he was unable to work due to his bipolar disorder and insomnia. After being advised of the information and evidence necessary to substantiate his TDIU claim in September 2011 letter, the Veteran submitted an updated VA Form 21-8940 in February 2012, wherein he alleged that he was unemployed as a result of his PTSD, headaches, shoulders, and back. While the RO denied the Veteran's claim for a TDIU in a July 2012 rating decision, since such rating decision, the Veteran was awarded increased initial ratings for his PTSD (at the time of the July 2012 rating decision, his PTSD was rated as 10 percent disabling) in the November 2012 rating decision. Therefore, as indicated in the Introduction, the issue of entitlement to TDIU has been raised by the record. The Board notes that the Veteran is currently service-connected for obstructive sleep apnea, tension headaches, PTSD, left torn rotator cuff, status post repair, tinnitus, gastroesophageal reflux disease (GERD), right torn rotator cuff, right hip myofascial pain syndrome, left hip myofascial pain syndrome, left shoulder scars (all linear scars head to toe) associated with left torn rotation cuff repair, and tender surgical scars associated with left rotator cuff repair. Therefore, on remand, an opinion regarding whether such disabilities, either singularly or jointly, render the Veteran unemployable should be obtained. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Finally, the Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records for his service-connected disabilities, to include PTSD. Thereafter, all identified records, to include those from the Lexington, Kentucky, VA Medical Center dated from August 2013 to the present, should be obtained for consideration in the Veteran's appeal. 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. Provide the Veteran an opportunity to identify any outstanding VA or non-VA treatment records for his service-connected disabilities, to include PTSD. Thereafter, all identified records, to include those from the Lexington, Kentucky, VA Medical Center dated from August 2013 to the present, should be obtained. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Ascertain whether the Veteran has ever received disability benefits from the Social Security Administration (SSA). If so, obtain complete copies of any determination on a claim for disability benefits from SSA as well as the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 3. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his PTSD. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD. If more than one psychiatric disorder is diagnosed, the examiner should expressly indicate whether it is possible to distinguish the symptomatology attributable to service-connected psychiatric impairment from that attributable to any nonservice-connected psychiatric impairment. The examiner should clearly indicate if it is not possible to separate the symptoms and effects of the service-connected psychiatric disability from any nonservice-connected psychiatric disability. However, if any separately diagnosed disorders are deemed related, this also should clearly be indicated. Finally, the examiner should also specifically address the impact such disability has on the Veteran's employability. All opinions expressed should be accompanied by supporting rationale. 4. After completing the above, the Veteran's claims file should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, i.e., obstructive sleep apnea, tension headaches, PTSD, left torn rotator cuff, tinnitus, GERD, right torn rotator cuff, right hip myofascial pain syndrome, left hip myofascial pain syndrome, left shoulder scars, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. All opinions expressed should be accompanied by supporting rationale. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims 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). These claims 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. 2013). _________________________________________________ A. JAEGER 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).