Citation Nr: 1416973 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 11-24 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2012. A transcript of that hearing is of record. VA's electronic claims file system, known as the Veterans Benefits Management System (VBMS) reflects no representative for the Veteran. The paper file, however, contains a valid VA form 21-22 dated in September 2012 appointing the American Legion as the representative. The American Legion represented the Veteran at the hearing in September 2012, and the Board finds that the American Legion is currently the Veteran's representative. The issue of entitlement to service connection for headaches has been raised by the record in the June 2011 VA examination, but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous evaluation where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist also includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). A VA examination was conducted in June 2011. The most recent relevant treatment record associated with the claims folder is dated January 2012. At the Veteran's September 2012 hearing, he indicated that he was receiving weekly psychiatric treatment at a VA facility. He also described symptoms that are more severe than those reflected in the medical record, such as agoraphobia and experiencing weekly panic attacks or chronic depression that last anywhere from 3 to 10 days. Therefore, the medical evidence of record does not provide sufficient detail to determine the severity of the Veteran's service-connected disability under the applicable rating criteria. Accordingly, a new examination is warranted to determine the current extent and severity of the Veteran's service-connected PTSD. 38 C.F.R. § 3.159(c)(4)(i); See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information). The claims folder must also be updated to include the VA treatment records compiled since January 2012. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the unemployed Veteran raised the issue of TDIU during his hearing by stating that he believes he lost his most recent job due to his PTSD symptoms, such as forgetting about tasks he was asked to complete and not interacting with the rest of the staff. However, the TDIU claim has not been developed by the AOJ. A medical opinion is necessary to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Friscia v. Brown, 7 Vet. App. 294 (1995) (VA has a duty to supplement the record by obtaining an examination that includes an opinion on the effect the appellant's service-connected disabilities have on his ability to work). The Veteran should also be sent appropriate VCAA notice informing him of the requirements of a TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice complaint with the Veterans Claims Assistance Act of 2000 (VCAA) with respect to the claim for a TDIU. Ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant education and employment information. The Veteran must be given an opportunity to respond to the notice, and any additional information or evidence received must be associated with the claims file. 2. Obtain all treatment records for the Veteran from the VA Medical Center in Cleveland, Ohio and all associated outpatient clinics including the Parma Community Based Outpatient Clinic dated from January 3, 2012 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 3. Thereafter, schedule the Veteran for a psychiatric examination of the Veteran by an appropriate examiner, to determine the current severity and manifestations of the Veteran's service connected PTSD. The complete record, to include the Veteran's claims file must be made available to and reviewed by the examiner in connection with the examination. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail including providing a Global Assessment of Functioning (GAF) score. The examiner is also asked to address whether it is at least as likely as not (50 percent probability or more) that the Veterans service connected disabilities, alone or in combination prevent him for securing or following a substantially gainful occupation consistent with his educational and occupational history, without regard to his age or nonservice connected disabilities. A complete rationale for all opinions expressed must be provided. 4. If the Veteran's service-connected disabilities prevent him from working, and he does not meet the scheduler criteria for TDIU, then refer the claim to the Director of Compensation for consideration of an extra-schedular rating. 5. After completing all of the above, readjudicate the issues on appeal. If any benefit remains denied, provide the Veteran with a supplemental statement of the case, and provide an opportunity to respond, before the case is returned to the Board. 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. 2013). _________________________________________________ ROBERT C. SCHARNBERGER 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).