Citation Nr: 1342377 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-32 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to service-connected PTSD. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and February 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The May 2009 rating decision denied a disability rating greater than 30 percent for the Veteran's service-connected PTSD. The claims file reflects that the Veteran was previously represented by the Veterans of Foreign Wars (VFW), as reflected in an October 1977 VA Form 23-22. In March 2010 and August 2010, the Veteran filed statements revoking the power of attorney for the VFW to serve as his representative, effective immediately. In a December 2013 statement, VFW acknowledged the revocation. Thus, the Board recognizes the Veteran as proceeding pro se in this matter. The issue of entitlement to service connection for COPD, claimed as secondary to service-connected PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the entire appeal period, the Veteran's PTSD has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a disability rating for PTSD in excess of 30 percent have not been met. 38 U.S.C.A. § 1155, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided to the Veteran in a February 2009 letter. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Additionally, the Veteran is in receipt of Social Security Administration disability benefits and those records have been obtained. 38 C.F.R. § 3.159(c)(2). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Three VA PTSD examinations have been secured in connection with the current claim on appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Taken together, the Veteran's March 2008, March 2009 and October 2012 VA PTSD examinations are sufficient as the VA examiners considered the entire record, noted the history of the disability, addressed relevant evidence, and provided explanations for the opinions stated as well as the medical information necessary to reach a decision. VA's duty to assist with respect to obtaining an examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. PTSD - Increased Rating Service connection for PTSD was granted by RO action in May 2008, at which time a 30 percent rating was assigned under 38 C.F.R. § 4.130, DC 9411, effective from May 5, 2003. The Veteran filed a claim for increase in January 2009. In May 2009, the RO confirmed and continued this rating. The issue before the Board is the question of whether a rating in excess of 30 percent is assignable for PTSD. The Veteran contends that an increased rating is warranted as he experiences more severe symptoms of PTSD than a 30 percent rating reflects. See Veteran's Notice of Disagreement, August 2009. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's PTSD is currently evaluated as 30 percent disabling from May 5, 2003, under DC 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent rating is warranted for PTSD if it is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for PTSD if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for PTSD if the veteran exhibits occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined as number between zero and 100 percent, that represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV"). GAF scores are just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. See 38 C.F.R. § 4.126(a). GAF scores ranging from 61 to 70 indicate some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Id. Use of terminology such as "mild" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board finds that an evaluation in excess of 30 percent is not warranted during the appeal period. The Board will explain its reasoning below. Initially, the Board notes that the Veteran has been diagnosed with nonservice-connected major depression. However, VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). None of the Veteran's treating or examining physicians have separated the symptomatology manifested by his major depression and PTSD. Therefore, the Board will consider the Veteran's major depression when determining the appropriate rating for service-connected PTSD. VA medical records reflect treatment for PTSD. During a December 2007 VA mental health clinic interview, the Veteran reported that he was mostly feeling okay. He was coping with the September 2007 death of his wife with the help of family. The Veteran continued to have nightmares or flashbacks that interfered with sleeping but medication was helping. The Veteran did not feel depressed but reported a lack of energy, motivation and poor concentration. He denied any active suicidal or homicidal ideation, intent or plan. The VA examiner found the Veteran to be fairly groomed, calm, cooperative, with normal speech, depressed mood, logical thought processes and no delusion or paranoia. The Veteran with diagnosed with PTSD and major depression. The examiner noted the Veteran had "mild sx" and assigned a GAF score of 65. In March 2008, the Veteran was provided with a VA PTSD examination. The Veteran reported he was currently receiving psychiatric treatment at the VA through both individual and group therapy. He was living alone but planned to have his daughter, son-in-law and grandchildren move-in. The Veteran stated that he is "very close" with his daughter and son-in-law. Upon mental examination, the Veteran spoke slowly with some mild psychomotor retardation. He was cooperative, with good eye contact, normal speech, depressed mood and tearful affect. He had no suicidal or homicidal ideation and no hallucinations. The VA examiner found the Veteran's thought process to be linear and goal directed with good judgment and insight. The Veteran was able to complete his activities of daily living. He played golf once a week and attended group therapy once a week, in addition to receiving individual therapy. The Veteran was diagnosed with PTSD and given a GAF score of 65. The VA examiner stated that the Veteran's GAF score reflected the Veteran functioning well with some meaningful interpersonal relationships with his daughter, son-in-law and grandchildren. Additionally, the Veteran has some social support including friends and is able to golf once per week. While the Veteran continues to have depressed symptoms, the VA examiner stated they were mild. A March 2008 note from the Veteran's VA psychiatrist states that the Veteran has been receiving treatment from him since May 2006. See Dr. M. A., Statement in Support of Claim, March 2008. The Veteran has symptoms of PTSD including nightmares and flashbacks. Id. He is depressed due to multiple psychosocial stressors, especially the death of his wife in September 2007. Id. The Veteran has received treatment for his PTSD from the Butler County Vet Center since 2003. In March 2008, the Veteran's Vet Center therapist stated that the Veteran "has major impairment in social functioning due to intrusive thoughts, panic, and isolation." See Letter from D. P. C., M. S., Butler County Vet Center, March 2008. However, Vet Center treatment records from this timeframe show that although the Veteran has a flat mood and depression due to his wife's passing, he has no anxiety, no suicidal or homicidal ideation and a good relationship with his children. See Butler County Vet Center, Progress Note, January 2008 and February 2008. A September 2008 VA treatment note found the Veteran keeping busy with his grandchildren, still dealing with his wife's death and continuing to have nightmares or flashbacks that interfere with his sleep. He denied active suicidal or homicidal ideation, intent or plan. The VA doctor found the Veteran fairly groomed, calm, cooperative, with normal speech, okay mood, affect congruent to mood, logical thought process and no delusion or paranoia. The diagnosis was PTSD and major depression with "mild sx." The Veteran was assigned a GAF score of 60. VA mental health notes from March 2009 documented the Veteran's feelings of depression and nightmares or flashbacks that interfere with his sleep. He lacked energy and motivation and had poor concentration, but denied suicidal or homicidal ideation, intent and plan. The VA doctor stated the Veteran was fairly groomed, calm, cooperative, with normal speech, affect congruent to mood, logical thought process and no delusion or paranoia. The Veteran's mood was irritable as he did not sleep well. The diagnosis was PTSD and major depression with "mild sx." The Veteran was assigned a GAF score of 55. In March 2009, the Veteran underwent a VA PTSD examination. He Veteran reported receiving ongoing treatment for his PTSD at the VA. He denied any suicide attempts. The Veteran was taking several medications to treat his PTSD symptoms. He last worked full time in 2001 and took early retirement as a result of a corporate downsize. The Veteran was living with his daughter and two grandchildren. He socializes with his family and some veteran friends he plays golf with. Although the Veteran has a history of alcohol abuse, he has maintained sobriety. Upon mental status examination, the Veteran was casually groomed, cooperative, with logical thought process, alert and oriented in all spheres, no delusions or hallucinations and an intact immediate, recent and remote memory. He denied any suicidal or homicidal ideation or plans. The Veteran reported no panic attacks but did report feeling depressed and anxious on a daily basis. He was also suffering from chronic sleep impairment, nightmares and periods of hypervigilance and hyperarousal. The diagnosis was PTSD with a GAF score of 65. The VA examiner stated the Veteran had many years of gainful employment and his reason for unemployment was not psychiatric. The Veteran had some social functioning with his family and his activities of daily living were adequate. An April 2009 mental health note found the Veteran feeling depressed and still dealing with the death of his wife with the help of his family. The Veteran requested new medication be provided to help him sleep as he has nightmares or flashbacks that interfere with his sleep. The Veteran denied any active suicidal or homicidal ideation, intent and plan. He was receiving weekly psychotherapy at the VA. The Veteran was fairly groomed, cooperative, with normal speech, tired mood, affect congruent to mood, logical thought process and no delusion or paranoia. The diagnosis was PTSD and major depression with "mild sx." A GAF score of 50 was assigned. VA mental health treatment notes from October 2010 document the Veteran feeling depressed "at times" with nightmares and flashbacks that make him jump out of bed occasionally. With the help of his family, the Veteran has been able to cope with the death of his wife. He reported that the medications prescribed to him for sleep are helping. Upon mental status examination, the Veteran was fairly groomed, cooperative, with normal speech, logical thought process and no delusion or paranoia. His mood was "tired, not depressed," and his affect was congruent to his mood. Although the Veteran had a history of suicidal ideation, he denied suicidal thoughts and denied homicidal ideation. The diagnosis was PTSD and major depression with "mild sx." The VA doctor assigned a GAF score of 50. In July 2011, the Veteran was treated at the VA and reported not feeling depressed as much. At times he has nightmares and flashbacks. He was coping fine from the death of his wife with the help of family and friends. He was attending treatment at the Vet Center, church meetings with other veterans and has been playing golf with other veterans. The VA doctor found the Veteran fairly groomed, cooperative, with normal speech, normal mood, affect congruent to mood, logical and goal directed thought process and no delusions or paranoia. The Veteran denied suicidal and homicidal intent and plan. The diagnosis was PTSD and major depression with "mild sx," and a GAF score of 50 was assigned. The Veteran was afforded another VA PTSD examination in October 2012. The Veteran was diagnosed with PTSD and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner assigned the Veteran a GAF score of 65. The Veteran reported that his daughter and two grandchildren live with him, he sees them frequently and they have a "wonderful" relationship. He gets together with a veterans group once a week for coffee and sometimes golf and finds that these veterans are good friends and a good source of support. The Veteran has also been in a "sort of" relationship for the past two to three years with his girlfriend. The Veteran and his girlfriend cannot sleep in the same bed due to the Veteran's nightmares. The Veteran is not currently working. He worked at his last job for 32 years and stopped working due to a company-wide forced retirement. The Veteran is currently on medication for his PTSD symptoms and meets weekly with a PTSD group. He reported feeling down, sad or blue every day with a moderate level of interest, but low energy level most days. He gets eight hours of sleep at night but does not feel rested. The Veteran has no significant memory issues but does have mild problems with his attention and concentration. He reported suicidal and homicidal ideation but has no plan or intent to follow through. The Veteran denied suffering from hallucinations or panic attacks. He is independent with his activities of daily living. The VA examiner found the Veteran suffers from the following PTSD symptoms - depressed mood, anxiety, chronic sleep impairment and suicidal ideation. The VA examiner opined that the Veteran's PTSD is having a mild impact on his social and occupational functioning. Although the Veteran is experiencing symptoms that are distressing, he is able to manage his PTSD symptoms in a way that limits their impact on his social and occupational functioning. A December 2012 VA general psychiatric note documents the Veteran "feeling much better," with a mood described as good. The Veteran credits a new medication for helping him to be able to sleep all night. Now that he is able to sleep well, the Veteran feels like he can handle life better. The Veteran is feeling more alert, his flashbacks are better and he is having no nightmares. He reported no suicidal or homicidal ideation. The Veteran lives with his daughter, son-in-law and two grandchildren. He has a girlfriend and engages in limited activities, including visiting his 80 year old sister every two days to make sure she is okay. The Veteran mood was good, affect was bright, speech was normal and his thought process was organized and goal directed. The Veteran had no delusions and his insight and judgment was good, although his memory was poor. There was no explanation provided for why the VA examiner found the Veteran's memory to be poor. The Veteran contends that he is entitled to a higher PTSD disability rating due symptoms of depression, chronic sleep impairment, difficulty concentrating, hypervigilance, detachment, anxiety, suicidal ideation and the need for continuous medication and psychotherapy. See Veteran's Statement in Support of Claim, January 2013. During the appeal period, the Veteran has been assigned GAF scores between 50 and 65. After reviewing the evidence of record, the Board finds that an evaluation in excess of 30 percent for the Veteran's service-connected PTSD is not warranted because the evidence does not show reduced reliability and productivity or difficutly in establishing and maintaining effective work and social relationships. The reasons and bases for this determination will be set forth below. The evidence does not demonstrate flattened affect or disturbances of motivation and mood. Indeed, throughout the appeal period, the Veteran's behavior was appropriate upon all of his VA examinations, Vet Center notes, and outpatient treatment records. The Veteran was consistently found to be cooperative, fairly groomed, with normal speech, logical thought process and no delusions or paranoia. Additionally, the Veteran has always denied suffering from panic attacks. While the Veteran has consistently had a depressed or tired mood, the September 2008 examiner noted that the Veteran's mood was okay and his affect was congruent to his mood. In July 2011, his mood was normal and affect was congruent with his mood. In December 2012, the Veteran's mood was good and his affect was bright. Although the Veteran reported suicidal and homicidal ideation during the October 2012 VA examination, during all other examinations over the appeal period, he denied suicidal and homicidal ideation. Moreover, while the Veteran did endorse suicidal and homicidal ideation in October 2012, he denied having any plan or intent to follow through on these ideas. The Veteran has also denied any suicide attempts. The competent evidence during this period also fails to show circumstantial, circumlocutory, or stereotyped speech. Communication and speech were within normal limits on all reports and examinations. The Veteran's speech was normal and his thought process has consistently been organized and logical. Although the Veteran has suffered from some nightmares and flashbacks of Vietnam with periods of hypervigilance and hyperarousal, examiners have regularly found his thought processes are clear and he has no delusions, hallucinations or paranoia. The medical evidence during this period also fails to show evidence of difficulty in understanding complex commands, or any deficiencies regarding judgment or abstract thinking, although the Veteran reported that he had some mild difficulties with attention and concentration. While a December 2012 VA report documented the Veteran's memory as poor, it did not contain any rationale for this finding, minimizing its probative value. Additionally, the March 2009 VA examiner found the Veteran's immediate, recent and remote memory intact and the October 2012 VA examiner opined that the Veteran had no significant memory issues. Furthermore, the evidence shows the Veteran is fully capable of taking care of his personal needs as noted in the VA examination reports. The examiners also noted the Veteran exhibited the ability to maintain personal hygiene and did not show any problems with activities of daily living. It is acknowledged that the Veteran reported being unable to sleep in the same bed as his girlfriend due to his nightmares. The Board has also considered the March 2008 statement from the Vet Center therapist that the Veteran "has major impairment in social functioning due to intrusive thoughts, panic, and isolation." Contrary to this finding, the evidence of record shows the Veteran has good social functioning. He lives with his daughter, son-in-law and two grandchildren, sees them frequently and describes his relationship with them as "wonderful." The Veteran also gets together with a veterans group once a week for coffee and sometimes golf and attends church meetings with these veterans. He considers these veterans good friends and a good source of support. In December 2012, the Veteran stated he visits his 80 year old sister every two days to make sure she is doing well. The Veteran has also been in a relationship with his girlfriend for the past two to three years. Considering all of the above, the Board finds that during the appeal period, the Veteran has not shown difficulty in establishing and maintaining effective social relationships. The Board notes that the overall symptomatology associated with the Veteran's PTSD does not more closely approximate the schedular criteria required for the next higher 50 percent disability rating. The evidence does not show the Veteran experienced flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week (he did not report panic attacks at all), difficulty in understanding complex commands, or impaired judgment. The Board notes the October 2012 report of suicidal and homicidal ideation and the Veteran's prior history of suicidal ideation. However, given the other findings of record, as detailed in pertinent part above, such ideation, standing alone, does not demonstrate a disability picture more commensurate with a rating in excess of 30 percent. The weight of the credible evidence demonstrates that during the appeal period, the Veteran's PTSD has warranted no more than a 30 percent rating. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Extraschedular Consideration The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability. During the appeal period, the Veteran's PTSD has been manifested by symptoms that result in mild social and occupational impairment, including depressed mood, anxiety and chronic sleep impairment. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Total Rating for Compensation Based on Individual Unemployability Total rating for compensation based on individual unemployability (TDIU), is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The record specifically finds that the Veteran is currently not working due to a company-wide forced retirement. The Veteran had many years of gainful employment prior to retirement and does not contend his reason for retirement was psychiatric in nature. There is no evidence in the record of unemployability and the Veteran has not claimed to be unemployable due to his service-connected disabilities. Hence, further consideration of TDIU is not warranted. ORDER Entitlement to a disability rating in excess of 30 percent for PTSD is denied. REMAND A remand is necessary for additional evidentiary development. The Veteran contends that his COPD is secondary to his service-connected PTSD. Specifically, the Veteran claims that as a result of his PTSD, he was unable to stop smoking and actually increased the amount he was smoking, which contributed to the development of his COPD. The Veteran was afforded a VA respiratory examination in November 2011. The VA examiner diagnosed the Veteran with COPD and emphysema since 2007. The Veteran began smoking in 1965 before he entered the service and smoked two packs per day until he quit smoking in 2008. The Veteran attributed his smoking to the stress relief it brought him as a result of his PTSD. The VA examiner opined that it was less likely than not that the Veteran's COPD was caused by or a result of an increased usage in tobacco products due to his PTSD because the Veteran's usage of tobacco predated the onset of his military service and thus of his PTSD and smoking tobacco is a behavioral choice. In April 2001, VA issued an implementing regulation, 38 C.F.R. § 3.300, reflecting the statutory provision noting that a disability or death will not be service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. However, in a 2003 opinion, the VA's General Counsel held that neither 38 U.S.C. § 1103(a) nor VA's implementing regulation at 38 C.F.R. § 3.300 bars a finding of secondary service connection for a disability related to the veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the veteran's use of tobacco products during service. See VAOGCPREC 6-2003. Adjudicators must resolve: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service-connected. See VAOGCPREC 6-2003. Based upon the foregoing, it is necessary to remand the case in order to afford the Veteran an addendum VA medical opinion that addresses whether after service the Veteran's service-connected PTSD caused him to be unable to cease smoking or caused him to increase his smoking and whether the use of tobacco products was a substantial factor in causing his COPD. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Obtain records of any relevant medical treatment the Veteran has received since January 2013 from the Cincinnati VAMC and Butler County Vet Center. A response, negative or positive, should be associated with the claims file. 2. After completion of the foregoing, the RO should arrange for an addendum VA opinion from the same VA examiner who conducted the Veteran's November 2011 VA respiratory examination. If this VA examiner is not available, the RO should arrange for an addendum VA opinion from an examiner with appropriate expertise. The claims file (i.e. both the paper claims file and all medical records contained in Virtual VA) and a copy of this remand should be made available to the examiner for their review. Based on the November 2011 examination and current review of the record, the examiner should answer the following questions: (a) Is it at least as likely as not that after separating from active duty service, the Veteran's service-connected PTSD caused the Veteran to either increase his use of tobacco products or be unable to cease the use of tobacco products? (b) If the answer to (a) is in the affirmative, was the use of tobacco products, as a result of the Veteran's service-connected PTSD, a substantial factor in causing the Veteran's currently diagnosed COPD? (c) If the answer to (a) is in the affirmative, would the Veteran's COPD not have occurred but for the use of tobacco products caused by his service-connected PTSD? Note: if the examiner concludes that the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why these opinions would be speculative and what, if any, additional evidence would permit such opinions to be made. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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 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. 2013). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs