Citation Nr: 1415452 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 08-20 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a disability evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), to include on an extraschedular basis. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability(ies) (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from July 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Albuquerque, New Mexico. In an October 2011 decision, the Board denied an evaluation in excess of 70 percent for PTSD. The Board also remanded the issue of a TDIU for further development. The Veteran subsequently appealed the October 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2013, the Court, in a single judge decision, affirmed the Board decision. Thereafter, the appellant filed a motion for reconsideration, or, in the alternative, a panel decision. The Court granted the Motion for Reconsideration and withdrew the June 2013 decision. In an August 2013 decision, the Court, as will be discussed below, set aside the October 2011 Board decision. with regard to the issue for an evaluation in excess of 70 percent for PTSD, for actions consistent with the Court's decision. 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 In its October 2011 decision, the Board denied an evaluation in excess of 70 percent for PTSD, to include on an extraschedular basis, finding that referring the issue to the Director of Compensation for consideration on an extraschedular basis was not warranted. As noted above, the Board also found the issue of a TDIU had been raised but not adjudicated and took jurisdiction of the issue directing that further development, to include a VA examination, be performed, and that the RO adjudicate this issue and issue a supplemental statement of the case if a TDIU could not be granted. As noted above, the Veteran appealed the issue for evaluation in excess of 70 percent for PTSD to the Court. In its August 2013 decision, the Court noted that the Board, in its October 2011 decision, remanded the issue of a TDIU while also finding that referral for extraschedular consideration was unnecessary because the schedular evaluation was not inadequate and the diagnostic criteria adequately described the severity and symptomatology of the Veteran's service-connected PTSD. The Board noted that while the issues relevant to referral for extraschedular consideration and entitlement to TDIU were not necessarily intertwined, adjudication of both issues required a complete picture of service-connected disabilities and their effect on employability. The Court stated that if the record was incomplete as to the issue of employability with respect to TDIU, remand of both the TDIU issue and referral for extraschedular consideration might be warranted. The Court indicated that although the record contained some evidence of unemployability, the Board did not explain how it took such evidence into consideration in determining that his disability was not so extraordinary as to warrant referral for extraschedular consideration. The Court stated that this was particularly notable given the Board's decision to remand the issue of TDIU based upon this limited evidence of employability contained in the record. The Court found that it was possible that the additional evidence gathered as to the TDIU issue would also alter the Veteran's disability picture and render extraschedular consideration necessary. The Court found that in light of the Board's remand of the TDIU issue, the Board's finding against referral for an extraschedular rating was premature. The Court remanded the increased evaluation issue to allow the Board to consider referral for an extraschedular rating after VA complied with the Board's remand pertaining to the TDIU. The Board notes that in conjunction with the October 2011 remand of the TDIU, the Veteran was afforded a VA examination in December 2011. While the examiner rendered an opinion that it was less likely than not that the Veteran's PTSD symptomatology rendered him unable to secure or maintain gainful employment, she did not address whether the Veteran's PTSD "markedly interfered with" employment. Accordingly, the claims folder should be returned to the December 2011 VA examiner, if available, in order for her to render an opinion on this issue. The Board further notes that while the Veteran was afforded a VA examination with regard the TDIU claim and that other additional development was performed in conjunction with the directives of the Board remand, it does not appear that further adjudication of this issue has taken place, as was required as part of the Board remand. The Board also observes that the last VA treatment records associated with the record date back to December 2011. As this matter is in remand status, an attempt should be made to associate any additional treatment records subsequent to December 2011 with the record. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all treatment providers and/or facilities that have treated him for any psychiatric disorders since December 2011. After obtaining proper authorization, if necessary, associate with the record copies of treatment records from those identified providers/facilities. If the Veteran identifies any VA treatment facilities obtain and associate these records with the record. 2. Following completion of #1 above, return the claims folder and all other pertinent records to the examiner who performed the December 2011 VA examination, if available. Following a review of the claims folder and all other pertinent records, the examiner should offer an opinion as to whether the Veteran's PTSD causes marked interference with employment. A complete rationale for any opinion expressed must be provided. In addition to the above opinion, the examiner is again requested, following receipt of any additional evidence, to offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's combined service-connected disability(ies) render him unable to follow a substantially gainful employment. Complete detailed rationale must accompany this opinion. If the examiner is not available refer the claims folder to another VA physician and request that they provide the above requested opinions along with detailed rationale. 3. After receiving the VA examination report, refer the Veteran's claim for an increased evaluation for PTSD on an extraschedular basis to the either the Under Secretary for Benefits, or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) as it relates to the PTSD claim. 4. Based on the development requested hereinabove, the RO should review the Veteran's claim. Thereafter, the Veteran's claims of entitlement to an evaluation in excess of 70 percent for PTSD, to include on an extraschedular basis, and entitlement to TDIU, should be readjudicated. If any benefit sought on appeal is not granted the Veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. J. ALIBRANDO 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).