Citation Nr: 1629686 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 11-21 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Casey, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1990 to June 1999. The matter of an increased rating for PTSD is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial rating of 10 percent, effective January 30, 2008. During the pendency of the appeal for an increased rating for PTSD, the Veteran filed a November 2012 application for increased compensation based on unemployability. A July 2013 rating decision denied entitlement to a TDIU rating. In these circumstances, as discussed below, the issue of entitlement to a TDIU rating becomes part of the pending appeal for an increased disability rating. See M21-1, IV.ii.2.F.4.m. As a statement of the case (SOC) has not been issued with respect to the appeal for a TDIU rating, the Board is required to take jurisdiction over the issue for the limited purpose of remanding it for such action. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran had also initiated appeals of denials of service connection for sinusitis and a rating in excess of 10 percent for fibromyalgia. A July 2011 rating decision granted service connection for sinusitis, rated 10 percent, and increased the rating for fibromyalgia to the maximum 40 percent schedular rating, both effective January 30, 2008. Consequently, those matters are not before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks a rating in excess of 30 percent for PTSD. A February 2012 statement from N.S., Ph.D., a private psychologist, indicates that the Veteran "has been able to manage her [PTSD] symptoms for years. However,...she has come to an age in her life when she no longer has the physical and emotional resources available to manage her symptoms as competently as she has historically." N.S. stated that the Veteran's symptoms include ritualistic behaviors that have an obsessive/compulsive quality to them, and her symptoms have reached a level where she is experiencing an inability to adapt to the stressful situation found in work and worklike settings. As N.S.'s February 2012 statement reflects a worsening of PTSD symptoms since the September 2011 private psychiatric evaluation (the most recent in the record), a remand for a contemporaneous examination and updated records of private PTSD treatment is necessary. Additionally, this matter raises the issue of pyramiding. As a general policy, 38 C.F.R. § 4.14 prohibits pyramiding (rating the same symptoms under different Diagnostic Codes (Codes)). Throughout the period for consideration in this case, the Veteran has been in receipt of a 50 percent rating for migraine headaches, a 40 percent rating for fibromyalgia, and a 30 percent rating for PTSD. The Board observes that the 50 percent rating assigned for migraines under Diagnostic Code 8100 reflects symptomatology such as "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." The 40 percent rating assigned for fibromyalgia under Diagnostic Code 5025 reflects symptomatology such as "widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms...[t]hat are constant, or nearly so, and refractory to therapy." On July 2011 VA psychiatric examination, the Veteran reported sleep impairment, anxiety, and depression, and that she calls into work many times saying that her son is sick and then takes Ambien and sleeps all day. A February 2009 letter from her employer indicates that from January 2008 to February 2009 she used 318.75 hours of leave due to her migraine headaches. In light of the foregoing evidence, the overall disability picture is unclear regarding whether or not the Veteran's sleep impairment, depression, anxiety, and occupational impairment are attributable to her PTSD, migraines, or fibromyalgia. Therefore, an addendum opinion that, to the extent possible, parses out the Veteran's psychiatric symptoms (i.e., whether such symptoms are related to her PTSD, migraines, or fibromyalgia) is necessary. As discussed in the introduction above, pursuant to the M21-1, IV.ii.2.F.4.m., where (1) a Veteran files a notice of disagreement regarding entitlement to an increased disability rating; (2) while the increased-rating appeal is pending, she raises the issue of entitlement to a TDIU rating due to the disability on appeal; and (3) a rating decision denies entitlement to a TDIU rating, then (4) the issue of entitlement to a TDIU rating becomes part of the pending appeal for an increased disability rating. M21-1, IV.ii.2.F.4.m. A separate notice of disagreement is not required, and VA must issue a SOC regarding the issue of entitlement to TDIU. Id. If VA fails to furnish a claimant with an SOC in accordance with statutory or regulatory requirements, the appropriate remedy is for the Board to remand the matter to the AOJ for the issuance of an SOC. See Manlincon, 12 Vet. App. at 240-41. In this case, during the pending appeal for an increased rating for PTSD, the Veteran filed a November 2012 claim for a TDIU rating based on her PTSD. A July 2013 rating decision denied entitlement to a TDIU rating. As a statement of the case (SOC) has not been issued with respect to the appeal for a TDIU rating, the Board is required to remand the matter for such action. Id. Finally, the Board notes that a July 2013 rating decision lists various evidence that was received since November 2012, including February, April, and July 2013 VA examinations, a November 2012 application for increased compensation based on unemployability, March 2013 private medical records from Baptist Health Neurological Clinic, and December 2012 Social Security Administration (SSA) records. However, a review of the file did not find that such evidence in the Veteran's physical claims file or the electronic record. As such evidence is constructively of record and pertinent to the pending appeals, the AOJ must complete an exhaustive search to secure that evidence and associate it with the Veteran's appeals record. Accordingly, the case is REMANDED for the following: 1. The AOJ must ask the Veteran to identify the provider(s) of any updated evaluations and treatment she has received for her service-connected PTSD (to specifically include any updated psychiatric treatment records from N.S., Ph.D.) and to provide any releases necessary for VA to secure private records of such evaluations and/or treatment. The AOJ must secure records of all such evaluations and/or treatment from the provider(s) identified by the Veteran. If any private provider does not respond to an AOJ request, the Veteran should be so notified, and advised that ultimately it is her responsibility to ensure that the private records are received. 2. The AOJ must complete an exhaustive search to secure and associate with the Veteran's appeals record all the evidence listed in the July 2013 rating decision. 3. Thereafter, the AOJ should arrange for a psychiatric examination of the Veteran to determine the current severity of her service-connected PTSD. The entire record (including a copy of this remand) must be reviewed by the examiner in conjunction with the examination. Any studies deemed necessary must be completed. The examiner should describe the nature, frequency, and severity of the psychiatric symptoms found. The examiner should also indicate whether or not, and to what extent, each symptom is attributable to the Veteran's service-connected PTSD, migraine headaches, and/or fibromyalgia. The examiner should have available for review a copy of the criteria for rating psychiatric disabilities, and should note the presence or absence of each symptom listed in the criteria for ratings above 30 percent (and if a symptom is found present, its severity and frequency); the examiner should also note any symptoms found that are not listed in the rating criteria. The examiner should specifically comment on the impact of the Veteran's PTSD symptoms on her occupational and social functioning. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as appropriate. 4. The AOJ should furnish the Veteran with an SOC with respect to her claim of entitlement to a TDIU rating. Afford her and her representative a reasonable opportunity for response. The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect her appeal of this issue to the Board. As to any issue where a timely substantive appeal is received, such issue should be returned to the Board for appellate review. 5. The AOJ should then review the record, arrange for any further development indicated, and readjudicate the claim for a rating in excess of 30 percent for PTSD. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her representative opportunity to respond, and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).