Citation Nr: 1619915 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 10-41 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and depression prior to October 29, 2013, and in excess of 70 percent thereafter. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In an October 2009 rating decision, the RO granted service connection for PTSD and depression with an evaluation of 50 percent effective June 19, 2009. A January 2010 rating decision denied the Veteran's separately filed claim for a total disability rating based on individual unemployability (TDIU) due to his PTSD. The Veteran thereafter filed a notice of disagreement (NOD) with the January 2010 rating decision denying a TDIU, and the RO issued a Statement of the Case (SOC) in September 2010. In his October 2010 VA Form 9, the Veteran contended that he is "totally disabled due to PTSD." The Board finds that this statement, which was received within one year of the October 2009 rating decision, can be reasonably construed as expressing disagreement with the initial rating assigned to his PTSD (separate and apart from his entitlement to a TDIU) and desire for appellate review. See 38 C.F.R. § 20.201 (2010). Thus, the statement constitutes a NOD with the October 2009 rating decision. The claims file does not contain a Statement of the Case (SOC) for this issue, and therefore the claim must be remanded to provide the Veteran with that document and afford him the opportunity to perfect an appeal of this issue. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The Veteran's claim for entitlement to TDIU is inextricably intertwined with his pending claim for an increased initial rating for PTSD and depression Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). In any event, additional development is needed on this claim. Specifically, on the Veteran's October 2009 application for a TDIU, he indicated that he last worked full time in 1990 at the U.S. Postal Office. He reported to the August 2009 VA examiner that he last worked at a dry cleaner in 1995. At the February 2016 Board hearing, the Veteran testified that he was currently working at the VA in the independent living program for four hours per day and was paid minimum wage. On remand, the AOJ should request that the Veteran complete an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain more information regarding the Veteran's current employment and work history. Moreover, the November 2013 VA examiner's assessment of the Veteran's occupational functioning was based on an inaccurate factual premise, namely that the Veteran retired after working 20 years as a bus driver. While the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, (see 38 C.F.R. § 4.16(a) (2015); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)), once VA undertakes the effort to obtain an opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Thus, on remand, an addendum opinion is necessary. On remand, updated VA treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Issue a SOC that addresses the Veteran's entitlement to an initial rating in excess of 50 percent for PTSD and depression prior to October 29, 2013, and in excess of 70 percent thereafter. The Veteran must be informed that, in order to perfect an appeal of these issues to the Board, she must file a timely and adequate substantive appeal following the issuance of the statement of the case. 2. Request that the Veteran complete an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Obtain all outstanding VA treatment records. 4. Then return the claims file to a psychologist or psychiatrist other than the November 2013 VA examiner for preparation of an addendum opinion. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner is requested to address the Veteran's occupational functioning due to PTSD and depression in light of his complete work history. The examiner is advised that the Veteran did not retire from bus driving, as noted in the November 2013 VA examination report. The examiner is directed to review the October 2009 VA Form 21-8940, any recently submitted VA Form 21-8940, the August 2009 VA examination report and the Veteran's February 2016 hearing testimony for an accurate employment history. A complete rationale shall be given for any opinion expressed. 5. Then, after taking any additional development deemed necessary, readjudicate the Veteran's claim for a TDIU. The Veteran 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). _________________________________________________ S. BUSH 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).