Citation Nr: 1410135 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-06 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to November 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2010 rating decision issued by the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO). In October 2011, the Veteran testified before the undersigned Acting Veterans Law Judge (VLJ) at a video conference hearing. A transcript of the hearing has been associated with the claims file. At the hearing and in December 2011, the Veteran submitted additional evidence, and waived initial RO consideration of the new evidence submitted. 38 C.F.R. § 20.1304 (c) (2013). The issue of entitlement to service connection for a neck disability, to include as secondary to the service-connected degenerative disc disease L4-L5 and sacralization L5-S1 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See the Board hearing transcript, p. 2. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Remand is required to afford the Veteran a VA examination to evaluate the current severity of his service-connected PTSD. Since the claim is being remanded, updated treatment records should be obtained as well. With respect to the issue of entitlement to a TDIU, the Court has held that 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 or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to a TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). At the October 2011 Board hearing, the Veteran testified that he has problems maintaining a job due to his PTSD symptoms. Accordingly, in light of the Court's decision in Rice, the Board directs the RO/AMC to proceed with the appropriate development of this issue. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran additional VCAA notice as to the issue of entitlement to a TDIU. All notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 (2013), must be fully met. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for treatment records from the United States Naval Hospital in Agana Heights, Guam, dated since October 2011. If any identified records are not obtainable (or none exist), the record must be clearly documented and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2013). The notice must contain the following information: (1) the identity of the records that could not be obtained, (2) an explanation of efforts made to obtain the records, (3) a description of any further action that will be taken including notice that VA will decide the claim based upon evidence of record unless the Veteran submits records that VA was unable to obtain and (4) notice that the Veteran is ultimately responsible for providing the evidence. 3. After all available records have been associated with the claims file, schedule the Veteran for a VA psychiatric examination to determine the nature and severity of his service-connected PTSD. The RO/AMC should schedule a physical examination at a VA facility or by way of a fee based examiner and not by video conference or Telehealth. The purpose of the examination is to determine the current severity of the Veteran's PTSD and its impact on his occupational and social functioning. a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. c) The examiner must determine the current severity of the Veteran's PTSD. If possible, the examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's service-connected PTSD. The examiner must also provide an opinion concerning the impact of the Veteran's PTSD on his ability to work to include whether the Veteran is solely unemployable because of his service-connected disabilities. d) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2013). _________________________________________________ D. MARTZ AMES 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) (2013).