Citation Nr: 1337058 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 12-16 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971, including service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for PTSD; a 30 percent evaluation was assigned, effective July 19, 2010. In a June 2012 rating decision, the RO increased the evaluation to 50 percent, effective July 19, 2010. In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. Although the issue of entitlement to a TDIU was not certified for appeal, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran has raised the matter of unemployability due to his service-connected PTSD during the pendency of the present claim. Therefore, the issue of entitlement to TDIU is raised by the record and is properly before the Board. 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 In several statements, the Veteran reported that his PTSD has worsened since the most recent examination, which was conducted in June 2011 for the purpose of establishing service connection. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. As to his TDIU claim, the Veteran has contended in his lay statements that symptoms of his service-connected PTSD directly contributed to his early retirement from his job in 2007. As the Veteran appears to be currently unemployed, the Board finds that he has raised the matter of entitlement to TDIU during the pendency of his claim. As such, the Board has jurisdiction over the TDIU claim. See Rice. The RO, however, has not expressly adjudicated the issue of entitlement to a TDIU rating. Accordingly, the claim for entitlement to TDIU must be remanded to the RO for adjudication prior to the rendering of a decision by the Board. Moreover, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to ascertain whether his service connected disabilities render him unemployable. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter addressing VA's duty to notify with respect to his TDIU claim, to include a VA Form 21-8940. The letter must give the Veteran the opportunity to address how his service-connected disabilities impact his ability to work. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his PTSD symptoms and their impact on his ability to work as well as the combined impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an examination by an appropriate VA medical professional to determine the current severity of his PTSD. The entire claims file (paper and electronic), including any newly obtained treatment records, must be reviewed by the examiner and all necessary tests should be conducted. The examiner should report all findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner should provide an explanation for all elements of his/her opinion. 4. Then schedule the Veteran for an examination with a vocational specialist to determine the impact of his service-connected disabilities, (PTSD, coronary artery disease, diabetes mellitus, tinnitus and peripheral neuropathy of the upper extremities) on his ability to secure or follow a substantially gainful occupation. The claims folder must be reviewed by the examiner and all necessary tests should be conducted and all clinical findings should be reported in detail. Thereafter, the examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service connected disabilities alone render him unable to secure or follow a substantially gainful occupation. The examiner must take into consideration the Veteran's level of education, training, and previous work experience. The examiner should describe what type of employment activities would be limited due to his service connected disabilities. 5. Then readjudicate the Veteran's claim for a higher rating for his PTSD and thereafter adjudicate his claim of entitlement to a TDIU. If any of the benefits sought on appeal remain are not granted in full, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford him the opportunity to respond before the file is returned to the Board for further consideration. The Veteran 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). 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). _________________________________________________ STEVEN D. REISS 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).