Citation Nr: 1421900 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 11-10 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an Jun e2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand is necessary for further evidentiary development of the Veteran's initial rating claim because the Veteran contends that his PTSD symptoms have continued to worsen since his most recent May 2007 VA mental health examination. See Veteran's Appellate Brief, April 2014. When a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Olson v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Additionally, the most current VA Medical Center (VAMC) records in the file are from August 2012. VA has a duty to obtain relevant medical treatment records. See 38 C.F.R. § 3.159(c) (2013). On remand, the Veteran updated medical treatment records should be obtained from the Pittsburgh VAMC, Westmoreland Community Based Outpatient Clinic (CBOC), and the Veteran's private physician, Dr. G. B. and he should be afforded a new VA examination to address the current severity of his PTSD. Furthermore, recent evidence received from the Veteran indicates that he may be unable to follow substantially gainful occupation as a result of his service-connected PTSD. See Questionnaire, Dr. G. B., June 2010 (The Veteran is not employable); see also Veteran's Hearing Transcript, pg. 6, March 2009 (Veteran testified he took early retirement due to PTSD symptoms). TDIU claims are to be liberally construed. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, a claim for a TDIU has been raised. Id; Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary-to include issuing appropriate notice and obtaining a medical opinion as to the effect of the Veteran's service-connected disabilities (PTSD, shrapnel injury to the left leg, bilateral hearing loss, and tinnitus) on his employability. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice regarding the claim for a TDIU. 2. Request the Veteran complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. 3. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for any mental health issues since May 2005. After securing the necessary release(s), obtain these records, including all pertinent treatment records from the Pittsburgh VAMC from August 2012 to the present, the Westmoreland CBOC from August 2012 to present, and Dr. G. B., from June 2010 to present, along with the August 2005 psychological evaluation referenced in Dr. G. B.'s June 2010 questionnaire. 4. After all the above development has been accomplished, schedule a VA psychiatric examination to ascertain the current severity of the Veteran's PTSD. The claims file and a copy of this remand must be reviewed by the examiner. All necessary tests should be conducted and all clinical findings reported in detail. (a) The examiner is requested to identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are specifically attributable to his service-connected PTSD. The examiner must conduct a detailed mental status examination. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner should distinguish, to the extent possible, between symptomatology resulting from the Veteran's service-connected PTSD and any other disorders, including depression, anxiety and any cognitive issues. If it is medically impossible to distinguish among symptomatology resulting from the several disorders, the examiner should state this in the examination report. (b) The examiner is also requested to provide an opinion as to whether the Veteran's service-connected disabilities (PTSD, shrapnel injury to the left leg, bilateral hearing loss and tinnitus) either singly or taken together, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to any impairment caused by non-service-connected disabilities. The examiner must provide complete rationales for all conclusions reached. Note: If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Then, readjudicate the issues on appeal. If any benefits remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ M. E. LARKIN 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).