Citation Nr: 1335359 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-32 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total rating by reason of individual unemployability due to service- connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant (The Veteran) and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1982 to August 2002. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2011, a travel board hearing was held before the undersigned in St. Petersburg, Florida. A transcript of the hearing is associated with the Veteran's claims file. By rating decision dated in July 2010, the RO granted service connection for PTSD, evaluated as 30 percent disabling. The Veteran, in correspondence dated in July 2010, submitted a notice of disagreement to the 30 percent evaluation. As noted below, a statement of the case must be issued in response to this notice of disagreement. Manlincon v. West, 12 Vet. App. 238 (1999). While the initial rating was increase to 50 percent by rating decision dated in April 2013, the Veteran continues to express dissatisfaction with the ratings. They are less than the maximum under the applicable criteria, so remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 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 Veteran contends that the degenerative disc disease of the lumbar spine is more disabling than currently evaluated. In support of his contention, he and spouse offered credible testimony before the undersigned to the effect that the most recent VA compensation examination, which was conducted in May 2010, did not sufficiently evaluate the pain associated with his low back disorder and that his disability had increased in severity since that examination. In addition, the Veteran testified that he was scheduled to attend physical therapy at the VA medical facility (VAMC). Records of this treatment have not been associated with the claims folder. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession). The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Regarding the claim for a higher evaluation for PTSD, the Veteran has submitted a Notice of Disagreement with the award. As a consequence, he has sought to appeal the current rating for PTSD. To date, he has not received an SOC related to this issue, so this claim must be remanded for compliance with Manlincon. See Manlincon, 12 Vet. App. 238. Finally, it is noted that the Veteran's combined service-connected disability rating is 90 percent. Although the Veteran has testified that he is currently self employed, he also testified that the employment was marginal in nature and that he could not work on a regular basis. Thus, it appears that he has contended that he could not secure and follow a substantially gainful occupation, by reason of service-connected disability. Such evidence in the record suggesting unemployability constitutes an informal claim for TDIU. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations"). See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary consent, the RO/AMC should contact the VAMC and request copies, for association with the claims folder, of any and all records of treatment for degenerative disc disease of the lumbar spine that the Veteran received at that facility since his hearing in November 2011. 2. The RO/AMC should schedule the Veteran for an examination to determine the current extent of the degenerative disc disease of the lumbar spine. X-rays and/or other diagnostic studies should be done, as deemed appropriate by the examiner. The examiner must provide a thorough description of the appellant's service-connected disorder and render objective clinical findings concerning the severity of the disability, to include observations of pain on motion, deformity, excess fatigability, incoordination, weakened movement and other functional limitations, if any. The claims folder should be made available for review in connection with this examination. The examiner must then render an opinion concerning the effect of the appellant's service-connected disability on his ordinary activity and his ability to procure and maintain employment. The examiner should provide complete rationale for all conclusions reached. 3. The Veteran must be provided a Statement of the Case (SOC) on the issues of entitlement to an increased rating for PTSD and TDIU. If and only if, the Veteran files a timely substantive appeal, should this issue be returned to the Board. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. 238; Rice, 22 Vet. App. 447. The appellant 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 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. 2012). _________________________________________________ F. JUDGE FLOWERS 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).