Citation Nr: 1400359 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 10-22 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating higher than 30 percent effective October 29, 2008, and 50 percent effective December 13, 2010, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active service from February 1967 to February 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted the Veteran's claim for service connection for PTSD with an evaluation of 30 percent effective October 29, 2008. An additional VA compensation and pension examination was performed in December 2010, which resulted in the RO granting the Veteran a higher 50 percent rating in a February 2011 decision, effective December 13, 2010. In November 2010, the Veteran proffered testimony before an RO Hearing Officer. A transcript of that hearing was prepared and has been included in the claims folder for review. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The record indicates that the Veteran's PTSD adversely affected his ability to work as a prosecutor until he retired in December 2012. The Board has therefore added a TDIU claim to page 1. Further development is needed to properly adjudicate the TDIU claim. 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 Unfortunately the Veteran's claim must be remanded for consideration of recent evidence. The Veteran underwent his most recent VA compensation and pension examination for his PTSD in August 2013. The report is included in the electronic Virtual VA file, along with recent VA social work records. The RO has yet to consider these records. As the examination and the treatment records are pertinent to the Veteran's claim, a remand is required to give the RO initial consideration of the evidence. See 38 C.F.R. § 20.1304(c); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that where VA treatment records are material to the issue on appeal and are not included within the claims file, a remand is necessary to acquire such VA records, because VA is deemed to have constructive knowledge of certain documents generated by VA agents or employees). Furthermore, as the August 2013 examination was performed without review of the Veteran's claims file, the Board has determined that a new examination is warranted to adequately rate the state of the Veteran's disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). While the Board recognizes that review of the claims file is not necessary in all compensation and pension examinations if the examiner indicates that he or she has a detailed understanding of the history of the Veteran's disability, there remains question regarding the total effect of the Veteran's disability on his ability to work and thus, the new examination must consider past psychiatric treatment records which detailed the Veteran's occupational struggles. The August 2013 examiner stated "it is at least likely as not that [the] Veteran's PTSD symptoms would impact his participation in employment." The new examination must properly address whether the Veteran's PTSD renders him unemployable. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative a VCAA letter that notifies him of the information and evidence required for a TDIU. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate his claim for a TDIU, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. 2. Make arrangements to obtain the Veteran's VA treatment records, dated since July 2013. 3. After the above records have been associated with the claims folder, schedule the Veteran for a VA psychiatric examination. The claims file and a complete copy of this remand should be reviewed in association with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. Following examination of the Veteran, the examiner should identify what symptoms, if any, the Veteran currently manifests, or has manifested in the recent past, that are attributable to his service-connected PTSD. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the Veteran's PTSD on his social and occupational adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner must provide an opinion as to whether the Veteran's service-connected PTSD; muscle injuries, Group III and V, left; right paracentral disc bulge at T6-T7; suppurative granulomatous inflammation of the left lower lobe with fibrosis, status post left lower lobectomy; and intercostal anesthesia, EITHER INDIVIDUALLY OR IN THE AGGREGATE, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated, including the issue of entitlement to TDIU. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). These claims 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). _________________________________________________ P.M. DILORENZO 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).