Citation Nr: 1541891 Decision Date: 09/28/15 Archive Date: 10/05/15 DOCKET NO. 08-32 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Stanley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1969 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD), rated 30 percent, effective March 2, 2007. The Veteran appealed the rating assigned; during the course of that appeal, a claim for TDIU was raised in the context of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A final February 2013 Board decision (by a Veterans Law Judge other than the undersigned, the case is now reassigned to the undersigned) granted a 70 percent rating for PTSD (resolving the matter of the schedular rating for such disability), remanded the TDIU claim for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND On March 2013 VA examination, it was noted that the Veteran reported he was receiving Social Security Administration (SSA) benefits. It is not clear from the report whether those are age-related or disability related benefits; if it is the latter, the records considered in connection with the award are pertinent evidence which is constructively of record, and the Board is obligated to secure them. The Veteran alleged (in August 2013) that his service connected psychiatric disability symptoms have increased in severity since he was examined in connection with his claim for an increased rating for PTSD (in March 2013). Specifically, he alleges a marked increase in the frequency of totally disabling (for employment) panic attacks. While the matter of the schedular rating for PTSD was finally decided by the Board in February 2013, the nature and severity of any increased manifestations would have bearing, and may be critical to a determination, on the matter of entitlement to a TDIU rating. Accordingly, a contemporaneous examination is necessary. The case is REMANDED for the following: 1. The AOJ should seek clarification whether the Veteran is receiving or has applied for, but was denied, SSA disability payments. If so, the AOJ should secure from SSA copies of their determination on the Veteran's claim for such benefits and all medical records considered in connection with such determination. 2. The AOJ should ask the Veteran to clarify whether his August 2013 statement was intended to raise a new claim for a schedular rating in excess of 70 percent for PTSD (or merely to support his claim for a TDIU rating. If he indicates that he wishes to pursue a new claim for an increased schedular rating claim for PTSD, the AOJ should arrange for all necessary development and adjudicate such claim (as it is inextricably intertwined with the claim for a TDIU rating). 3. The AOJ should secure for the record updated copies of complete clinical records of all evaluations and/or treatment (private and VA) that the Veteran has received for his service-connected disabilities. 4. Thereafter, the AOJ should arrange for the Veteran to be examined by a psychiatrist or psychologist to assess the current severity of his PTSD, and in particular the impact that symptoms of the PTSD (such as the allegedly increased in frequency severity panic attacks) may have on his employability. The entire record must be reviewed by the examiner in conjunction with the examination. The examiner should elicit from the Veteran his employment history and allegations regarding the impact of his disabilities on employment, comment whether the expected restrictions/limitations on employment resulting from manifestations shown by the record/found on examination are consistent with those reported by the Veteran, and reconcile any discrepancy. The examiner should also comment on the types of employment that would be precluded by the Veteran's PTSD symptoms and the types of employment (if any) that remain feasible despite the PTSD manifestations. The examiner must explain the rationale for all opinions. 5. The AOJ should then review the record, arrange for any further development, and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ George R. Senyk 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) (2015).