Citation Nr: 1409005 Decision Date: 03/04/14 Archive Date: 03/12/14 DOCKET NO. 11-23 412 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to October 1970. This matter comes before the Board on appeal from a March 2010 rating decision. In July 2012, the Veteran testified from the RO by way of videoconference technology at a hearing with the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Board observes that a request for a TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). When a claim for a TDIU rating is raised during the appeal of a rating for a disability, as it is in the instant case, it is part of the claim for benefits of the underlying disability. See August 2011 Form 9 Appeal, where the Veteran stated that he was receiving benefits from the Social Security Administration (SSA) in part due to his service-connected PTSD. A review of the Virtual VA paperless claims processing system includes VA treatment records from August 2011 to February 2012. Other documents are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System does not include any documents. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND During the July 2012 hearing, the Veteran testified that his service-connected PTSD had increased in severity since his last VA examination in February 2012. Thus, the Veteran should be afforded a contemporaneous examination to determine the current severity of his service-connected PTSD. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The examiner in this regard should also address whether the Veteran is unemployable due to his service-connected disabilities. Further, the Veteran must be provided with a notice letter related to his claim for a TDIU rating pursuant to the Veterans Claims Assistance Act of 2000. Lastly, the Veteran testified that, at least once per month, he sought mental health treatment at the VA outpatient clinic in Lorain, Ohio. His representative pointed out that VA treatment records from February 2012 to the present need to be associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A are fully met and satisfied with respect to the issue of entitlement to a TDIU rating due to the service-connected disabilities pursuant to 38 C.F.R. § 4.16(a) and (b). The notice should include an explanation as to the information or evidence needed to establish a disability rating and effective date of any increase for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO then should take all indicated action to associate with the claims file, or Virtual VA or VBMS, all the medical records contained on the CD-ROM received from the Social Security Administration in September 2011. 3. The RO also should take appropriate steps to contact the Veteran in order, with his assistance, to obtain copies of any outstanding records of pertinent medical treatment rendered by VA or private health care providers for his service-connected PTSD. All pertinent records should be added to the claims file, to include VA treatment records from February 2012 to the present from the VA outpatient clinic in Lorain, Ohio. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 4. The RO then should have the Veteran scheduled for a VA psychiatric examination to determine the current severity and extent of his service-connected PTSD. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. All tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should assign a GAF score as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), for the Veteran's service-connected PTSD and indicate the impact of his PTSD on occupational and social functioning. The examiner also is asked to address whether the service-connected PTSD prevents the Veteran from securing and following substantially gainful employment for which his education and occupational experience would qualify him. A complete rationale for all opinions expressed should be provided. If the examiner is not able to provide an opinion, he or she should explain why. 5. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2013). _________________________________________________ STEPHEN L. WILKINS 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).