Citation Nr: 1338952 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-31 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active duty service from October 1969 to February 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2013. The transcript is of record. In addition to the Veteran's paper claims folder, there is an electronic record known as Virtual VA, which has been reviewed. The matter of entitlement to TDIU has been raised by the record. The Veteran testified that he has difficulty maintaining employment because of his psychiatric symptomatology. The United States Court of Appeals for Veterans Claims held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of an increased rating claim when such a claim is raised by the record. The claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability, and as a result, the Board assumes jurisdiction over the matter and it will be addressed. 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 The Board is of the opinion that additional development is required before the Veteran's claims are decided. The most recent VA examination to determine the degree of severity of the Veteran's service-connected PTSD was in March 2011. Thereafter, during the July 2013 videoconference hearing before the undersigned, the Veteran essentially testified that the symptoms of PTSD had gotten worse since the 2011 VA examination. He stated that his PTSD was causing increased trouble with relationships as well as interference with his job performance. He noted that he is a welder and although he is working he is having a difficult time getting along at work. He has to walk off at times and just leave frequently. He also stated that, although his wife died in 2010, his PTSD had been bad prior to her death. He notes that the examiner in March 2011 mischaracterized the situation inasmuch as it indicated that his increased symptoms were more due to her death and not PTSD. When a Veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Veteran should accordingly be scheduled for an examination to determine the current severity of these disabilities. In evaluating a psychiatric disability, the Board is mindful that when it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). As it also appears that the Veteran is undergoing ongoing VA psychiatric treatment, updated VA treatment records should be added to the file, either to the paper claims folder or through VVA or VBMS. Also, as noted above in the Introduction section, the record indicates that the Veteran's psychiatric disability affects his ability to maintain substantially gainful employment as a welder. The United States Court of Appeals for Veterans Claims held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of an increased rating claim when such a claim is raised by the record. The record reflects that this issue has been raised. As such, the issue is properly before the Board. The Veteran should be sent notice the elements of the claim, and he should be afforded an examination with a medical opinion to determine whether it is at least as likely as not that his service-connected disability renders him unable to secure or follow a substantially gainful occupation because soliciting such an opinion is necessary to adjudicate this claim. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Obtain any outstanding VA treatment records pertaining to the Veteran's PTSD disability during the appeal period. 3. Thereafter, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and extent of all impairment due to the Veteran's service-connected PTSD. The claims folders should be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon review of the file, and the examination, the examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The examiner must explain the rationale for the opinion expressed. 4. Then, readjudicate the issue of entitlement to an increased rating for PTSD and adjudicate the TDIU claim. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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). _________________________________________________ BETHANY L. BUCK 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).