Citation Nr: 1529301 Decision Date: 07/09/15 Archive Date: 07/16/15 DOCKET NO. 10-44 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a 30 percent evaluation, effective from April 24, 2008. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a June 2012 statement, the Veteran explicitly raised the issue of TDIU entitlement as a free-standing claim for benefits. However, as it is considered part of the current appeal issue, the Board has jurisdiction over the claim. The issue of entitlement to an increased rating for coronary artery disease (CAD) has been raised by the record in a June 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Remand is required to provide necessary assistance to the Veteran in substantiating his claims. The Veteran's most recent PTSD examination took place in July 2009, over five years ago. Subsequently, the Veteran stated in August 2009 that his condition was having significant adverse impact on relations with family and friends; he had problems coping with daily routines, had suicidal ideation, and was not asked about his difficulties at work or sleep disturbances during his July 2009 examination. Further, no VA treatment records have been associated with the electronic claims file since March 2014. In light of allegations of worsening symptoms, remand for an updated VA PTSD examination is required, as well as to obtain updated VA treatment records. Remand is also required with regard to the TDIU claim. Not only is the claim inextricably intertwined with the open appeal for increased evaluation for PTSD, the Veteran has alleged involvement of his other service-connected disabilities in his employment problems. As with PTSD, a substantial period of time has passed since the most recent examination. On remand, action must be taken to obtain updated, relevant findings. Finally, a claim for TDIU involves consideration of a Veteran's employment history, educational achievement, and vocational attainment. 38 C.F.R. § 4.16(b). To ensure that sufficient information regarding these factors, particularly in light of recent allegations of changes in employment, a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, must be requested on remand, and the Veteran given all necessary notice regarding a claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents regarding his claim of entitlement to TDIU. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A properly completed VA Form 21-8940 must be requested from the Veteran. The Veteran is reminded that the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A lack of response after a specific request may cause VA to draw a negative inference from his inaction. 2. Associate with the claims file complete VA treatment records for the period of March 2014 to the present. 3. Send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers who may have additional records pertinent to the remanded claim. 4. Schedule the Veteran for a VA PTSD review examination. The examiner must describe in detail all current manifestations and symptoms of PTSD. The examiner must specifically discuss the impact of PTSD on the Veteran's occupational functioning, to include his ability to obtain or retain substantially gainful employment. 5. Schedule the Veteran for a VA general medical examination. The examiner must describe in detail all current manifestations and symptoms of the Veteran's service-connected disabilities. The examiner must specifically discuss the impact of service-connected disabilities on the Veteran's occupational functioning, to include his ability to obtain or retain substantially gainful employment. 6. Review the claim files to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal, to include entitlement to TDIU. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time 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 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).