Citation Nr: 1338455 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-00 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel REMAND The Veteran had active military service from September 1966 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. After the Veteran's August 2010 VA examination, the Veteran submitted a letter stating that he was concerned that his condition had worsened. See November 2011 Letter of Veteran. He also stated that immediately after an accident involving a truck he was driving, he became extremely combative because he thought "[the] Viet Cong [were] trying to get [him] out of a downed vehicle." Id. The Veteran is qualified, as a lay person, to report increasing symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Likewise, where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination). The Board notes here that the Veteran has claimed that his PTSD has worsened since his last examination. In light of these complaints, therefore, a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran's service-connected PTSD. Under these circumstances, the Veteran must be scheduled to undergo psychiatric examination at an appropriate VA medical facility. See 38 U.S.C.A. § 5103A. Moreover, it appears there are outstanding treatment records relating to the Veteran's PTSD that are outstanding. In his November 2010 Notice of Disagreement, the Veteran asserted that, in addition to seeing another therapist, the Veteran was also seeing a therapist at a veterans outreach center. The Veteran also indicated that he was receiving treatment for his PTSD at the Montgomery County Vet Center. See July 2010 Claim. To date, it appears that no attempt to obtain those documents has been made. VA has an obligation to make a reasonable effort to obtain all identified treatment records. See 38 C.F.R. § 3.159. As such, the claim must be remanded to attempt to obtain the specified treatment records. Further, the United States Court of Appeals for Veterans Claims has held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. Given the Veteran's arguments regarding an inability to work, the question of entitlement to TDIU should be properly addressed on remand. The duty to assist requires that VA obtain an examination which includes an opinion on the effect of the Veteran's service-connected disabilities on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). While the August 2010 VA examiner discussed the Veteran's difficulties at work due to his service-connected PTSD, the examiner did not offer an opinion as to whether the Veteran's PTSD prevented the Veteran from obtaining or maintaining substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction should ask the Veteran to identify all locations of VA treatment or evaluation for PTSD and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining to the Veteran's PTSD. All records obtained must be associated with the Veteran's claims file. 2. The agency of original jurisdiction shall request that the Veteran identify all private medical care providers that have treated or evaluated him for his PTSD complaints. The Veteran shall be asked to complete a release authorizing VA to obtain records of any such identified treatment, to specifically include therapy at a local veterans outreach center. 3. Provide the Veteran a VA Form 21-8940 and request he provide details regarding his employment history. An appropriate period of time should be allowed for response. 4. After any additional attainable evidence has been associated with the claims file, schedule the Veteran for a VA PTSD examination to determine the current severity of his disability. The claims file must be provided to and reviewed by the examiner. All necessary tests and studies should be conducted in order to ascertain the current severity of the Veteran's service-connected PTSD, including psychological testing as deemed necessary to distinguish PTSD symptomatology from traumatic brain injury symptoms, if feasible. The report of examination should contain an account of all manifestations of PTSD to be present. The examiner should comment on the extent to which the service-connected PTSD impairs the Veteran's occupational and social functioning, including whether it is believed that he is unemployable due to his PTSD. If so, the examiner should explain why. A global assessment of functioning score based on PTSD should be assigned and the score's meaning should be explained. 5. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. Consideration should include whether referral for extra-schedular award is warranted under 38 C.F.R. § 3.321(b)(1) or 38 C.F.R. § 4.16(b). If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs