Citation Nr: 1336269 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-12 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) and alcohol dependence (also claimed as memory loss and nightmares) (hereinafter "PTSD"). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas which granted service connection for PTSD with MDD and assigned a 30 percent rating as of August 19, 2009. The Veteran appeals to the Board for a higher initial rating. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file does not reveal any additional evidence pertinent to the present appeal. 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 any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issues of a disability rating in excess of 30 percent for PTSD and entitlement to a TDIU must be remanded for further development. PTSD The Board notes that the last VA examination of record assessing the Veteran's PTSD symptomatology was conducted in October 2009. A subsequent VA opinion was provided in May 2010 to clarify the October 2009 opinion, after receiving the previously unavailable claims file, but there was no examination of the Veteran. A September 2011 letter from the Veteran's VA treating psychiatrist stated that her PSTD symptoms, including nightmares, insomnia, anxiety with emotional distress, hypervigilance, difficulty concentrating, depression and social isolation, had worsened, causing her to quit her job. As the Veteran was last provided a VA examination four years ago, in October 2009, and the Veteran has provided evidence of a worsening in her PTSD symptoms, the Boards finds that VA is required to afford her a contemporaneous VA examination to assess the current nature, extent and severity of her PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The record reflects the Veteran had received continued mental health treatment at VA and the last VA treatment records associated with the file are dated March 2011, so ongoing medical records should also be obtained. In addition, the RO indicated in the supplemental statement of the case (SSOC) that it reviewed VA treatment records dated March 4, 2010 through March 4, 2011 from the Leavenworth VA Medical Center (VAMC). The claims file does not contain records for 2010 prior to June 23, 2010. If those records exist, the RO should obtain those records and associate them with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). TDIU With respect to the claim for a TDIU, the Veteran contends that she is unemployable due to her service-connected PTSD. Specifically, the September 2011 letter from her treating psychiatrist stated that the Veteran left her job because of her PTSD symptoms. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a) (2013). In exceptional circumstances, under the provisions of 38 C.F.R. § 4.16(b), a total disability rating may be assigned where the Veteran is unable to obtain or maintain substantially gainful employment and service-connected disabilities do not meet the schedular criteria pursuant to 38 C.F.R. § 4.16(a). At present, the Veteran's current disability rating of 30 percent for PTSD does meet the schedular requirements pursuant to 38 C.F.R. § 4.16 (a). The Board finds the claim for TDIU is inextricably intertwined with the claim for an increased rating for PTSD being remanded and the adjudication of the TDIU claim may depend on the outcome of the claim for an increased rating for PTSD. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the Board is remanding the increased rating claim for a new examination to assess the current severity of the Veteran's PTSD symptoms, the examiner should also provide an opinion on whether the Veteran is incapable of obtaining and maintaining substantially gainful employment, versus just marginal employment, as a result of her service-connected PTSD. Following the development on remand, the RO must readjudicate the claims. Thereafter, it must consider whether the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). If she does not, the RO should also consider whether referral for extra-schedular consideration under 38 C.F.R. § 4.16(b) is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran identify any outstanding relevant treatment records and secure the necessary authorization to obtain those records, to include all VA treatment records from March 2011 to the present and any missing records dated from August 19, 2009 through June 23, 2010. All records which are not duplicates of those already in the claims file should be associated with the claims file. The RO/AMC should document whether or not these documents were available. 2. The RO/AMC should send the Veteran a VCAA notice notifying the Veteran and her attorney of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU component of the claim on appeal. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on her behalf. 3. After the above development has been completed, the RO/AMC should schedule the Veteran for a VA PTSD examination to determine the current level of severity of her service-connected PTSD. All necessary tests and studies should be performed. The claims file, to include a copy of this remand, must be provided to and reviewed by the examiner in connection with the examination. (a) The examiner is asked to comment on the level of occupational and social impairment resulting from the Veteran's service-connected PTSD. The examiner should provide a Global Assessment of Functioning score. (b) The examiner should opine as to whether it is at least as likely as not that the Veteran is unable to obtain and maintain substantially gainful employment as a result of her service-connected PTSD, consistent with her education and occupational experience, irrespective of age and any non-service-connected disorders. The examiner should provide a rationale for any opinion provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the disability at issue or because of some other reason. 4. Then, the RO/AMC should readjudicate the claim for a rating higher than 30 percent for PTSD and the claim for TDIU. If any benefit sought on appeal remains denied, the Veteran and her attorney should be furnished an SSOC and given the opportunity 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. 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). _________________________________________________ K. Parakkal 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).