Citation Nr: 1338489 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-21 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from May 1968 to December 1970. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied a rating in excess of 30 percent for PTSD. The appellant's claim was subsequently transferred to the jurisdiction of the RO in Phoenix, Arizona. In February 2013, the appellant testified before the undersigned Veterans Law Judge at a Board hearing held at the Phoenix RO. A transcript of that hearing has been associated with the appellant's Virtual VA file. The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) has held that a claim for a total rating based on individual unemployability, either expressly raised by the appellant or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As set forth in more detail below, in view of the appellant's assertions and the record in this case, the Board has recharacterized the issues on appeal as set forth on the cover page above. 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 After reviewing the record, the Board finds that additional evidentiary development is necessary prior to further appellate consideration. First, the Board notes that VA's duty to assist includes obtaining a medical examination or opinion if one is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). A review of the record indicates that the appellant was afforded a VA psychiatric examination in September 2010 in connection with his claim. At his February 2013 Board hearing, however, the appellant testified that he felt as if his PTSD symptoms had increased in severity since that time. In particular, he indicated that he had recently had to quit his job as a coach due to his inability to handle stress. The appellant also stated that he been unable to work since that time. He further testified that his PTSD symptoms now included suicidal thoughts, panic attacks three times per week, difficulty controlling his anger, paranoia, and impaired memory. In light of the appellant's testimony and the applicable rating criteria for evaluating PTSD, the Board finds that an additional examination is necessary. 38 C.F.R. § 3.159(c)(4) (2013); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that when a claimant alleges that a disability is worse than when originally rated, and the available evidence is insufficient to adequately evaluate the current state of the condition, VA must provide a new examination). In addition, the appellant testified at his February 2013 hearing that he had recently been awarded disability benefits from the Social Security Administration (SSA). He indicated that he had significant orthopedic disabilities in addition to his PTSD, and he was unsure if SSA had considered his service-connected PTSD in awarding those benefits. Following the hearing, however, the appellant submitted a copy of a March 2013 form letter from SSA confirming that he was in receipt of disability benefits for "unspecified arthropathies and affective/mood disorders." In light of the appellant's testimony and the information subsequently received from SSA, the Board finds that VA has a duty to make the necessary efforts to obtain records from SSA, as they appear to be potentially relevant to this claim. 38 C.F.R. § 3.159(c)(2013); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed.Cir. 2010). Additionally, in light of the appellant's testimony to the effect that he is unable to continue working due to his PTSD, the Board finds that the issue of entitlement to TDIU has been reasonably raised. Under these circumstances, the RO/AMC should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, at his February 2013 hearing, the appellant testified that he continues to receive regular medical care for his service-connected PTSD at the Tucson VA Medical Center (VAMC). The most recent records from that facility are dated in July 2012. To ensure that the record on appeal is complete, additional evidentiary development is necessary. 38 C.F.R. § 3.159(c)(2013). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake appropriate notice and development actions in connection with the appellant's claim for a total rating based on individual unemployability due to service-connected disability (TDIU). 2. The RO/AMC should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. The RO/AMC should obtain any outstanding medical records pertinent to the appellant's PTSD from the Tucson VAMC for the period from July 2012 to the present. 4. After the above records are secured and associated with the record, the appellant should then be afforded a VA psychiatric examination to determine the severity of his service-connected PTSD. The claims folder and access to any additional records in the appellant's electronic VA files must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and electronic record, the examiner should address the severity of the appellant's service-connected PTSD and discuss the level of social and occupational impairment attributable to that disability. The examiner should also opine whether it is at least as likely as not that the appellant's service-connected PTSD renders him unable to secure or maintain substantially gainful employment. A complete rationale must be provided for any opinion offered. 5. Thereafter, the RO/AMC must review the record and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full. Thereafter, the RO/AMC should readjudicate claim, considering all of the evidence of record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. 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.W. ZISSIMOS 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).