Citation Nr: 1618983 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 14-02 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 70 percent prior to June 11, 2013, and in excess of 30 percent from that date, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1968 to March 1971, and from March 1971 to April 1983. In a February 2013 administrative decision, it was determined that the Veteran's service from March 1971 to April 1983 was not honorable for VA purposes and he is not entitled to VA benefits for this period of military service. The Veteran remains eligible for VA benefits based on his period of military service from March 1968 to March 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for PTSD, rated 30 percent, effective September 30, 2011 (date of claim); and denied entitlement to TDIU. The Veteran's notice of disagreement (NOD) was received in October 2013; he disagreed with only the initial disability rating assigned for his service-connected PTSD, and not the effective date. In a December 2013 rating decision and statement of the case (SOC), the Veteran's service-connected PTSD was granted an increased initial disability rating of 70 percent from September 30, 2011 (date of claim) to June 11, 2013 (date of a VA examination); the previously assigned 30 percent initial disability rating was continued from that date. The Veteran's substantive appeal was received in January 2014. As he has not expressed satisfaction with the ratings assigned for either of the "stages" on appeal, the issue has been characterized to reflect that staged ratings are assigned, and that both remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Regarding the issue of entitlement to TDIU, as noted, this matter was addressed in the August 2013 rating decision and denied. Although the Veteran did not explicitly appeal the August 2013 rating decision insofar as it denied entitlement to TDIU, the Board notes that in his October 2013 NOD, he stated, "At this point my PTSD has me no longer working and I believe this also should be a factor when it comes to determining the severity of my disability." Such a statement suggests it is the Veteran's continued assertion that his service-connected PTSD renders him unemployable. Importantly, the United States Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is part of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the foregoing, the Board finds that the issue of entitlement to TDIU is properly before the Board by virtue of his increased initial disability rating claim for PTSD pursuant to Rice. In November 2015, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. At the hearing, the undersigned granted a request to hold the case in abeyance 60 days for the submission of additional evidence. 38 C.F.R. § 20.709. In January 2016 and February 2016, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A claimant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327 (2015). During the November 2015 videoconference hearing, the Veteran provided testimony suggesting that his PTSD symptoms had worsened since his last VA examination (and private psychiatric examination). Specifically, he noted he was participating in a depression and anger management program at the Ann Arbor, Michigan VA Medical Center (VAMC), had been prescribed increased dosages of psychiatric medication to treat his disability, and had suffered from increased nightmares and sleep impairment (particularly, within the last six months). As the Veteran has presented testimony suggesting a worsening in his condition, and the record shows his last VA examination was in June 2013 (and the most recent private psychiatric examinations were conducted in January/February 2015 and August 2015), the Board finds that he should be afforded a new VA examination. Also at the November 2015 videoconference hearing, the Veteran testified that he receives regular psychiatric treatment through the Dearborn, Michigan Vet Center; the Ann Arbor, Michigan VAMC; and the Detroit, Michigan VAMC. A review of the record shows that VA treatment records through June 2013 have been obtained from the Ann Arbor and Detroit VAMCs and associated with the record. After the November 2015 videoconference hearing, the Veteran also submitted copies of his January to December 2015 treatment records from the Ann Arbor VAMC, as well as a January 2016 statement from the Dearborn, Michigan Vet Center. See January 2016 and February 2016 submissions from the Veteran. However, updated records from the Detroit VAMC have not been obtained for the record. Similarly, although some updated records were obtained and submitted from the Ann Arbor VAMC, this was only a partial record. The Veteran's treatment records from the Dearborn Vet Center likewise have not been obtained for association with the record. Therefore, the Veteran's claim must also be remanded for the development of these records. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA records are considered part of the record on appeal as they are in VA's constructive possession and may have bearing on the Veteran's claim). Finally, regarding the claim for TDIU, as was explained in the Introduction, this issue is in appellate status by virtue of the Veteran's increased initial disability rating claim for PTSD. As that claim is being remanded, consideration of whether the Veteran is entitled to TDIU must also be deferred pending resolution of the claim for increased initial disability ratings for PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (explaining that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify the provider(s) of all treatment or evaluation he has received for his service-connected PTSD, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. 2. Secure for the claims file all relevant VA treatment records from the Ann Arbor VA Medical Center (dated from June 2013 to January 2015, and from December 2015 to present); from the Detroit VA Medical Center (dated from June 2013 to present); and from the Dearborn Vet Center (all records). 3. If any of the above-requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran and his representative must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 4. After the foregoing development has been completed, the Veteran should be afforded a VA psychiatric examination to determine the current severity of his service-connected PTSD as well as its impact on his employability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe the nature, frequency and severity of all current psychiatric symptoms. The examiner should also opine specifically regarding the impact of the Veteran's psychiatric symptoms on his occupational and social functioning. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. In doing so, the examiner should also comment on the opinions already of record in these matters (May 2011 private examination report, June 2011 VA examination opinion, January/February 2015 private examination report, and August 2015 private examination report), expressing agreement or disagreement with the conclusions reached in each, and explaining the rationale for the agreement or disagreement. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 5. If any benefit sought on appeal remains denied, issue a supplemental SOC (SSOC). The case should then be returned to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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).