Citation Nr: 1337228 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-10 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 30 percent 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: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to July 1975 and from September 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2012, the Veteran and his spouse testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At such time, the Veteran submitted additional evidence and waived agency of original jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the present case, during his July 2012 Board hearing, the Veteran reported that he was unable to work due to his PTSD symptoms. Consequently, the issue of entitlement to a TDIU has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, it has been listed on the first page of this decision. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. A review of the documents in that file reveals copies of VA medical records, which are duplicative of the VA medical records provided by the Veteran at his July 2012 Board hearing. 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 Veteran contends that his service-connected PTSD is more severe than indicated by his current 30 percent disability rating and renders him unemployable. In November 2009, the Veteran underwent a VA examination to determine the severity of his PTSD. Since that time, additional VA treatment records suggesting a worsening of PTSD symptomatology has been received. For example, the Veteran sought admission at a VA psychiatric hospital in March 2012 and, in July 2012, his VA medical provider indicated that his PTSD symptoms had worsened since January. The Veteran also provided testimony at his July 2012 Board hearing as to an increase in the severity of his symptoms. Specifically, at such time, he indicated that he was a danger to himself or others, had difficulty with his hygiene, and problems with short-term memory. As such, the Board finds that a remand is necessary so as to afford the Veteran a contemporaneous VA examination to assess the current nature and severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Additionally, as noted in the Introduction, the issue of entitlement to a TDIU has been raised by the record. In this regard, the November 2009 VA examiner found that the Veteran had mild occupational impairment due to PTSD symptoms. However, during his July 2012 Board hearing, the Veteran reported that he was unable to continue working due to his PTSD symptoms. Therefore, on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU claim and be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Furthermore, in connection with the aforementioned examination, the Board finds that an opinion regarding whether the Veteran's service-connected PTSD renders him unemployable should be obtained. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Additionally, as relevant to both claims, the AOJ should obtain all outstanding VA treatment records regarding the Veteran's service-connected PTSD. The Board notes that the Veteran receives VA treatment through the Mountain Home, Tennessee, VA Medical Center and a complete copy of his treatment records dated through November 2009 have been associated with the claims file. While the Veteran submitted additional VA treatment records in July 2012, it is unclear whether such are a complete copy. Therefore, on remand, all of the Veteran's VA treatment records pertaining to PTSD dated from November 2009 to the present should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. The AOJ should obtain VA treatment records from the Mountain Home VA Medical Center dated from November 2009 to the present. 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). 3. After obtaining all outstanding records, the AOJ should afford the Veteran an appropriate VA examination to determine the current nature and severity of his PTSD and to offer an opinion as to whether his PTSD renders him unemployable. 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. The examiner should also render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of PTSD (his only service-connected disability), 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. A rationale for all opinions offered should be provided. 4. After completing the above, and any other development that may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence (specifically including the VA medical records not previously reviewed by the AOJ). If any claim remains 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 U.S. 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). _________________________________________________ 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) (2012).