Citation Nr: 1419082 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 13-08 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder with alcohol abuse (hereinafter PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in New York, New York (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2013, and a copy of the hearing transcript is of record. The appeal is REMANDED to the AMC/RO. VA will notify the appellant if further action is required. REMAND It was contended by the veteran and his representative at his August 2013 videoconference hearing (Transcript page 3) that his PTSD has gotten worse as he has gotten older, which essentially means that it has increased in severity since the most recent VA examination for compensation purposes in September 2010. Consequently, there is a need to determine the current severity of the Veteran's service-connected PTSD. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Additionally, the Veteran referred at his videoconference hearing (Transcript page 21) to 2011 private treatment records from a Dr. Shapiro, which are not currently on file. The Court of Appeals for Veterans Claims (Court) has held that a request for 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 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). Here, the record includes the contention by the Veteran in his October 2013 videoconference hearing that he is unemployable due to his service-connected PTSD. Accordingly, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU. It would be fundamentally unfair to the Veteran to decide a claim which has not been developed and adjudicated by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). In order to comply with precedential Court opinion, this issue, therefore, is remanded for further development. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO must provide the Veteran VCAA notice related to a TDIU claim. 2. The Veteran will be requested to submit an up-to-date VA Form 21-8940, Veterans Application For Increased Compensation Based On Unemployability, which will be added to the claims files. 3. The AMC/RO will contact the Veteran and request that he identify all VA and non-VA medical providers who have treated him for PTSD since September 2010, the date of the most recent VA examination for rating purposes, to include the treatment from Dr. Shapiro, and provide the appropriate authorizations where necessary. Then attempt to obtain copies of the identified medical records that are not of record. All attempts to secure this evidence must be documented in the claims files. If, after making reasonable attempts to secure the named records, the RO is unable to secure same, notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. Give the Veteran and his representative an opportunity to respond. If private medical records are identified by the Veteran, the RO must make 2 attempts to obtain these records, unless the first attempt makes it clear that further attempts would be futile. If identified private medical records are not obtained, the RO must (1) inform the Veteran of the records that were not obtained, (2) inform the Veteran of the steps taken to obtain the records, and (3) inform the Veteran that the claim will be decided on the evidence of record, but that if the medical records are later submitted the claim may be readjudicated. 4. The AMC/RO must schedule the Veteran for an appropriate examination to determine the current severity of his service-connected PTSD and to determine the effects of his PTSD on his ability to secure or follow a substantially gainful occupation. The claims folder, including a copy of this remand, and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All indicated tests and studies must be accomplished. The examiner will provide accurate and fully descriptive assessments of all psychiatric symptoms. The examiner must enter a complete multi-axial evaluation, and assign a GAF score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The examiner will also provide an opinion on whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD precludes him from securing and following a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or his age. A complete rationale for all opinions must be provided. The report prepared must be typed. 5. The AMC/RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.158, 3.655 (2013). 6. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the AMC/RO will readjudicate the issue of entitlement to an initial evaluation in excess of 50 percent for PTSD and adjudicate the newly raised issue of entitlement to a TDIU, to include consideration of all of the evidence of record. If either of the benefits sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).