Citation Nr: 1341585 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 12-22 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from August 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran seeks an initial rating in excess of 50 percent for PTSD. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) rating has not been adjudicated by the RO but has been raised by the record; specifically, in the Veteran's Appeal to Board of Veterans' Appeals (Form 9). Thus, the Board finds that although an appeal was not received on the issue of entitlement to a TDIU rating, it is now before the Board because it has been reasonably raised during the adjudicatory process of the underlying claim for an initial rating for PTSD and is a component of the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to ensure a total review of the evidence. 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 Veteran is presently rated 50 percent disabling for his PTSD. He was last evaluated for this disability in a compensation and pension examination in May 2011. At the May 2011 examination the Veteran stated that he got along with his son, had many friends but chose not to be around them, played the fiddle in his spare time, and did not have suicidal thoughts. The Veteran stated that he was a retired police officer, and retired due to his high blood pressure, renal disorder, and insomnia. In the Veteran's Form 9 received in August 2012, the Veteran made new statements in regard to the severity of his PTSD. In his submission, the Veteran stated that he was forced to leave his job as a police officer because of panic attacks. The Veteran stated that he does not have a good relationship with his son, and that his son is still afraid of him. The Veteran stated he could not hold a job at Walmart because he is unable to be around people. The Veteran stated he did not leave his home except for when he has a VA appointment, and he also had suicidal ideations. The fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, the mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Given that the Veteran has made new statements relating to the severity of his PTSD, a new examination should be provided. Updated VA treatment records should be obtained as well. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should provide proper VCAA notice to the Veteran regarding a TDIU claim. 2. The Veteran should be provided a VA Form 21-8940 and be requested to provide up to date information regarding his employment and educational history. Specifically, the Veteran should submit any other evidence, such as employment records or statements from employers and physicians, supporting his contention that he is incapable of maintaining employment due to his PTSD. 3. Obtain VA treatment records from all treating VA facilities pertaining to any treatment the Veteran received for his PTSD disability dated since June 2012. All efforts to obtain VA records should be fully documented. The VA facility must provide a negative response if records are not available, and notice to the Veteran of inability to obtain these records must comply with 38 C.F.R. § 3.159(e). 4. Thereafter, schedule the Veteran for an appropriate examination regarding his claim for an increased rating for PTSD. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. The examiner is asked to assess the current overall impairment of the Veteran's PTSD on social and occupational functioning. The examiner is asked to describe all symptoms caused by the service-connected PTSD and the impact on the Veteran's occupational and social functioning. In addition, the examiner should comment on the effect of the Veteran's service-connected PTSD on his ability to engage in any type of gainful employment and whether, in the examiner's opinion, this service-connected disability is of such severity as to result in unemployability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment despite his service-connected PTSD, not whether he can find employment. In providing this opinion, the examiner should consider the lay statements concerning the Veteran's symptoms of PTSD. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). 5. Thereafter, readjudicate the PTSD and TDIU claims. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ 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).