Citation Nr: 1340358 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 13-04 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Jose, Associate Counsel INTRODUCTION The Veteran had active service from February 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, which established service connection for PTSD. A 30 percent evaluation was assigned with an effective date of November 25, 2009. The Veteran contended in an October 2010 Notice of Disagreement (NOD) that a higher initial rating is warranted. In December 2010, the Veteran submitted a private psychological report, dated November 2010, which suggested an increase in the Veteran's PTSD symptoms. This report was considered by the RO in a December 2012 statement of the case (SOC). The Veteran perfected his appeal in a January 2013 VA Form 9, and the issue is currently before the Board. The November 2010 private psychological report stated that the Veteran's current disturbances in motivation and mood were related to a total impairment of his vocational productivity. As will be discussed further herein, the Board finds that it properly has jurisdiction over a claim seeking entitlement to a TDIU, a claim part-and-parcel of the higher disability rating for PTSD, and the Board has included this claim on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). 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 A remand is required in conjunction with the Veteran's appeal seeking an initial rating in excess of 30 percent for PTSD and a TDIU claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). At the outset, the Board observes that a comprehensive VA psychiatric examination has not been conducted in over 3 1/2 years. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination, as is essentially the case here. See 38 C.F.R. § 3.159 (2011); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). A review of the evidence indicates that the Veteran was last examined by the VA in January 2010 when a GAF score of 60 was assigned. In a November 2010 psychological report, the Veteran's private psychologist stated that the Veteran reported an escalation of his post-traumatic anxiety and mood instability. The private psychologist also gave the Veteran a GAF score of 48, lower than that assigned in the January 2010 examination, and concluded that the Veteran "manifests significant psychological decompensation since his initial evaluation." Therefore, a new and contemporaneous examination is in order to determine the current manifestations and level of severity associated with the Veteran's service-connected PTSD. In addition, the private psychologist's report opined that the Veteran's vocational productivity appears totally impaired and that this impairment is related to the Veteran's current disturbances in motivation and mood. A request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. See Rice, 22 Vet. App. at 453-54. Hence, at this point, the claim is viable as a component of the increased disability rating claim for PTSD. As the Board has jurisdiction over this issue, further development is necessary for a fair adjudication of the TDIU aspect of the claim. On remand, the AMC/RO is requested to afford the Veteran proper notice under the Veterans Claims Assistance Act of 2000 (VCAA) as related to his TDIU claim. As the case is being remanded, and it appears that the Veteran receives treatment through VA, records from the West Palm Beach VAMC dated from December 17, 2012 and forward will be sought and added to the record, prior to readjudication of the claim. In this regard, the Board points out that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Additionally, records from the Veteran's private psychologist should be attained. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO shall provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. Undertake appropriate efforts to obtain any underlying treatment records from the Veteran's private psychologist Dr. W.E. 3. Copies of all available VA records of psychiatric/mental health treatment records, assessments, and examination reports dated from December 17, 2012 forward must be requested and associated with the claims file or virtual VA file, as appropriate. 4. Thereafter, the AMC/RO shall schedule the Veteran for a VA psychiatric examination to determine the current manifestations and severity associated with the Veteran's PTSD. The claims file and a copy of this remand shall be made available to the examiner in conjunction with the examination and the examiner should indicate that the claims folder was reviewed. All tests deemed necessary by the examiner must be performed, and all findings set forth in detail. It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected PTSD, in accordance with the rating criteria specified at 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition, pertinent lay information should be recorded. The findings of the examiner shall address the degree and extent of social and occupational impairment attributable to the Veteran's PTSD. In addition, the examiner is requested to address whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected PTSD. The examiner should assign a GAF score and explain the basis for this finding. 5. Thereafter, schedule the Veteran for a Social and Industrial Survey to ascertain the impact of his service-connected disabilities on his unemployability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner should opine as to whether the Veteran's service-connected disabilities (PTSD, diabetes mellitus, peripheral neuropathy of the upper extremities, and peripheral neuropathy of the lower extremities), either singly or all together, render him unable to obtain and maintain substantially gainful employment consistent with his employment history, educational attainment, and vocational experience. The examiner should give consideration to the Veteran's level of education, special training, and previous work experience, but should not consider his age or the impairment caused by his nonservice-connected disabilities. A complete rationale for all opinions expressed must be provided in the examination report. 6. The AMC/RO will then readjudicate the Veteran's claim for a rating in excess of 30 percent for PTSD and adjudicate the issue of whether the Veteran is entitled to a TDIU. Adjudication of the claims should include consideration of all evidence added to the file since the December 2012 SOC was issued. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with an SOC. An appropriate period of time should be allowed for response. 7. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. 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). _________________________________________________ TANYA A. SMITH Acting 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).