Citation Nr: 1337237 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-45 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from February 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted the Veteran's claim of entitlement to service connection for PTSD, and assigned an initial disability rating of 30 percent, effective from September 17, 2009. A July 2011 rating decision increased the Veteran's disability rating to 50 percent, effective from September 17, 2009. In November 2011, the Veteran and his wife testified before the undersigned at a videoconference hearing at the RO. A copy of the transcript has been associated with the claims file. Additionally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an initial rating claim when such claim is raised by the record. In this regard, the Veteran testified during his November 2011 hearing that he believes his PTSD renders him unemployable. Therefore, the Board finds that the evidence raises a claim for a TDIU and, despite the fact the RO has not yet adjudicated this claim, it has been included on the title page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND During his November 2011 videoconference hearing, the Veteran testified that he receives on-going psychiatric treatment from the Vet Center in Princeton, West Virginia, and the VA Medical Center in Salem, Virginia, for his PTSD. However, these records are not in the claims file. As such, further development to obtain these records should be undertaken. The Veteran also testified that since his last VA examination in June 2011, he believes that the severity of his PTSD symptoms have worsened. His wife also stated that she believes his PTSD has increased in severity. In light of evidence indicating a possible worsening of symptoms, and the aforementioned treatment records, a current VA examination should be provided. Finally, as noted above, the Board has assumed jurisdiction over a claim for TDIU based on the evidence of record. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that further development is necessary for a fair adjudication of the Veteran's TDIU claim as detailed below. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice as to the evidence and information necessary to substantiate a claim for TDIU. Allow him a reasonable opportunity to respond. 2. The AOJ should associate with the claims file any pertinent VA treatment records of the Veteran for PTSD from the VA Medical Center in Salem, Virginia, together with copies of the Veteran's records of treatment at the Vet Center in Princeton, West Virginia. 3. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his PTSD. The examiner is also asked to comment on whether the Veteran's PTSD precludes him from securing and maintaining substantially gainful employment in light of his work history and level of education. The claims folder should be reviewed by the examiner prior to the examination. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. If the examiner cannot respond to the question posed without resorting to mere speculation, the examiner must so state and must provide an explanation for why an opinion cannot be provided without resorting to mere speculation. 4. Thereafter, the RO/AMC should review the evidence obtained and readjudicate the Veteran's claims for an increased rating and TDIU benefits. If the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate review. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).