Citation Nr: 1337799 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-34 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently rated as 70 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from April 1966 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Subsequent to that rating decision, jurisdiction was transferred to the RO in St. Paul, Minnesota. In the Veteran's Hearing Memorandum, the issue of total disability rating based on individual unemployability (TDIU) was raised as an issue before the Board. The record reveals that the issue of TDIU was denied by way of an April 2012 rating decision by the RO. No Notice of Disagreement as to the April 2012 rating decision was filed. As such, that rating decision is not before the Board. Nonetheless, in light of the holding in Rice v. Shinseki, 23 Vet. App. 447 (2009), that claims for TDIU are part and parcel with increased rating claims, as is the case here, the issue of TDIU is properly before the Board. As will be explained below, the claim for TDIU is being remanded for further development because VA examinations conducted in March 2011, February 2012, and March 2012 are not adequate for determining whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Further, the Board finds that the claim for an increased rating for PTSD is inextricably intertwined with the Veteran's TDIU claim, and therefore, the PTSD claim will be deferred pending the outcome of the TDIU issue on remand. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Specifically, new information obtained after another VA examination and opinion to determine whether his service-connected disabilities render him unemployable, could produce further evidence regarding the severity of the Veteran's service connected PTSD, thereby affecting the adjudication of his claim for an increased rating for PTSD. Therefore, since the issue of TDIU is being remanded, adjudication of the PTSD claim must be deferred. 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 As noted in the introduction, 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 and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability was raised by the record. Specifically, it was raised in the Veteran's representative's Hearing Memorandum, which was submitted to the Board. Generally, a Veteran will be entitled to a TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities - provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). In this instance, the Veteran meets the criteria above as he is service-connected for PTSD, which is rated as 70 percent disabling. The Veteran is also service-connected for fractures of the mandible at the left and right angles with post traumatic temporomandibular joint syndrome, traumatic brain injury, tinnitus, torn medial meniscus of the right knee with degenerative joint disease, and post operative bursectomy of the right elbow with degenerative changes, each of which is rated as ten percent disabling. The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect a veteran's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). To date, no examination considering all of the Veteran's service-connected disabilities and their effect on the Veteran's ability to work has been undertaken. The Veteran was afforded a VA examination in February 2012 to determine the effect that some of his service-connected disabilities have on his ability to work. The examiner determined that the Veteran's temporomandibular joint condition and elbow/forearm condition did not have an effect on the Veteran's ability to work. The examiner did find that the Veteran's knee/lower leg condition does impact his ability to work. To that end, the examiner noted that while the Veteran could not lift heavy objects, the Veteran could perform sedentary tasks and mild physical activity. The examiner did not address the effects of the Veteran's service- connected PTSD or traumatic brain injury on his ability to work. To date, no finding has been made on the occupational impact of the Veteran's service-connected traumatic brain injury. The effect of the Veteran's service-connected PTSD on his ability to work was considered somewhat at his March 2011 and February 2012 VA examinations. At a March 2011 VA examination for the Veteran's PTSD, the examiner opined that there is no objective evidence that the Veteran is unemployable due to a mental disorder. The examiner made no further contentions about the Veteran's ability to obtain or continue employment. At a February 2012 VA examination, on the other hand, the examiner noted that the Veteran's PTSD or other mental disabilities do impact his ability to work. Specifically, the examiner discussed the Veteran's prior work as a carpenter. In doing so, the examiner opined that cognitive disorder symptoms have caused the Veteran to no longer recall how to complete many of the carpentry functions that would be necessary in performing that occupation. Further, the examiner explained that the Veteran's substance abuse problems, which are related to his PTSD, would contribute to his vocational instability. Finally, the February 2012 examiner asserted that "[t]he Veteran's chronic PTSD continues unabated, he does have significant social and vocational impairment associated with PTSD...." (emphasis added). Given the two seemingly conflicting conclusions offered by the March 2011 and February 2012 examiners, it is unclear, based on the evidence of record, whether the Veteran's PTSD causes the Veteran to be unemployable. Given the lack of any opinion as to the occupational effects of the Veteran's traumatic brain injury and the unclearness of whether his PTSD is prohibitive of substantially gainful employment, an examination is necessary to determine the effect that his service-connected disabilities have on his employability. See Friscia, 7 Vet. App. 294. Given the possibility that examination could provide new evidence of the severity of the Veteran's PTSD, including its effect on his occupational abilities, the issues of TDIU and entitlement to an increased rating for PTSD are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, it is appropriate to hold the claim of entitlement to an increased rating for PTSD in abeyance until the development detailed below is completed. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be examined by a psychiatrist to determine the current level of disability caused by his service-connected PTSD and to ascertain whether all service-connected disabilities (physical and psychological) combine to prohibit the Veteran from obtaining and/or following substantially gainful employment. In addition to PTSD, the Veteran is also service-connected for fractures of the mandible at the left and right angles with post traumatic temporomandibular joint syndrome, torn medial meniscus of the right knee with degenerative joint disease, and post operative bursectomy of the right elbow with degenerative changes. The examiner should consider, along with the entire file, the February 2012 and March 2011 VA PTSD examinations discussed above, and should comment on the Veteran's level of occupational impairment caused by PTSD symptoms. Taking into consideration the severity of all of the Veteran's service connected disabilities, the examiner should offer an opinion as to whether the Veteran's service-connected disabilities, combine to make him unemployable. In making an assessment as to whether the Veteran is capable of obtaining or retaining gainful employment, the examiner should only take into account his service-connected disabilities, and not consider non-service connected disabilities. A complete rationale should be provided to support the VA examiner's assessment as to unemployability due to service-connected disabilities. In other words, an explanation should be provided as to why the examiner believes the Veteran is or is not employable. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The AOJ should make sure that the examination report complies with this remand and answers the question of the Veteran's service connected disabilities render the Veteran unemployable. The rationale for any opinion provided should be set forth. If the report is insufficient, i.e., if no rationale or an insufficient rationale is provided, it should be returned to the examiner for necessary corrective action, as appropriate. 2. Thereafter, the AMC should readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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). 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). _________________________________________________ J. A. MARKEY 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).