Citation Nr: 1604685 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 11-11 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) on a schedular basis. 2. Entitlement to an extraschedular rating for PTSD. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision from the Regional Office (RO) of the Department of Veterans Affairs (VA) in Phoenix, Arizona. It granted service connection for PTSD and assigned an initial 30 percent rating. In June 2014, the Board remanded this case for further development. In October 2014, the RO granted a 50 percent initial rating for PTSD. As higher schedular ratings are available, the issue remained on appeal. In January 2015, the Board denied entitlement to an initial schedular rating in excess of 50 percent for PTSD. It remanded the issues of entitlement to TDIU and an extraschedular rating for PTSD. The Veteran appealed the January 2015 Board denial of entitlement to an initial schedular rating in excess of 50 percent to the United States Court of Appeals for Veterans Claims (Court). During the pendency of the appeal, the parties filed a joint motion for remand. The Court granted the joint motion in November 2015. It vacated the January 2015 Board denial of an increased rating for PTSD and remanded the issue to the Board for action in compliance with the joint motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND An additional medical opinion is needed to reconcile the conflicting evidence for all the claims. The Veteran left work in April 2013 due to worsening PTSD symptoms. His former supervisor submitted a February 2015 statement indicating that the Veteran was generally unemployable due to PTSD symptoms. At the July 2015 VA PTSD examination, the examiner characterizes the overall severity of the Veteran's PTSD symptoms as approximating deficiencies in most areas of occupational and social function. Comments from the July 2015 VA PTSD examination indicate that the Veteran has problems maintaining social relationships outside his immediate family. Other comments within the July 2015 VA examination report indicate that the Veteran has enough social function to successfully maintain his marital relationship and complete daily activities without difficulty. Regarding employability, the examiner's comments suggest that while the Veteran needs PTSD accommodation in limiting work tasks involving social contacts, his PTSD symptoms are not of a severity to preclude gainful employment. Clarification is needed to resolve the July 2015 assessment of deficiencies in occupational and social function and reports of unemployability due to PTSD with the reports suggesting a lesser degree of occupational and social impairment. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since June 2014 for the Veteran. 2. Then, contact the VA psychologist who conducted the July 2015 VA PTSD examination for an addendum opinion. If she is unavailable, contact a suitably qualified clinician. The electronic claims folder, including all updated medical records, must be available. The examiner must review the entire record with particular attention to the July 2015 mental status examination, February 2015 employer report, March 2015 report from the Veteran's wife, and recent mental health treatment. Then, the examiner must characterize the general severity of the Veteran's social and occupational function in response to the General Rating Formula for Mental Disorders. The examiner must also state whether the Veteran's PTSD symptoms preclude gainful employment consistent with the Veteran's occupational experience and education. The examiner must consider the Veteran's educational attainment of a bachelor degree and occupational history of employment as an insurance agent in making the determination. A detailed explanation must accompany all opinions expressed with consideration to the lay reports. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (If the examiner indicates that a clinical evaluation is necessary, this should be scheduled). 3. After completing all development required above, re-adjudicate the claims, including whether referral for extraschedular consideration is warranted for PTSD. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given 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 matter or 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). _________________________________________________ THOMAS J. DANNAHER 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).