Citation Nr: 1631758 Decision Date: 08/10/16 Archive Date: 08/23/16 DOCKET NO. 14-19 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating in excess of 30 percent for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD) for the period prior to May 15, 2006, and in excess of 50 percent since July 1, 2006. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1968. He is in receipt of the Combat Infantryman Badge, the Purple Heart Medal, and other various campaign medals. This matter is on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Jurisdiction over the appeal is currently with the RO in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge in July 2014. A transcript of the hearing is of record. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Additional development is required before this appeal may be adjudicated. First, at his hearing before the Board in July 2014, the Veteran stated that his service-connected acquired psychiatric disorder has worsened since his most recent VA examination in March 2014. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In light these contentions, the Board concludes that an additional VA examination is necessary to determine the current nature and extent of his service-connected acquired psychiatric disorder. As for the Veteran's TDIU claim, the Board is unable to adjudicate this claim until the above development is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Additionally, the Board notes that the period on appeal applied by the RO is incorrect. Specifically, according to the March 2014 statement of the case, the period on appeal runs from the time the Veteran submitted a claim for an increased rating for his acquired psychiatric disorder in October 2009. However, when he was originally granted service connection for an acquired psychiatric disorder in a January 2007 rating decision, the Veteran submitted a response in March 2007 where he requested "reconsideration" of the 30 percent disability rating that was assigned in the January 2007 decision. In the Board's view, this is clearly a notice of disagreement. While his disability rating was increased to 50 percent in a subsequent rating decision in July 2008, a statement of the case was never issued as to why a rating in excess of 50 percent was not warranted until March 2014. See AB v. Brown, 6 Vet. App. 35 (1993). However, this statement of the case is inadequate, as it considers only for the period since October 2009. Finally, the Board notes that the RO issued a rating decision in October 2008 denying entitlement to TDIU. Although the Veteran did not specifically disagree with that particular decision, a claim for an increased rating for a service-connected disability is one for the highest rating obtainable, including entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As such, since the issue of entitlement to an increased rating is on appeal for the period since the time of his original claim in December 2005, the issue of TDIU is also on appeal since this time as well, if raised by the record. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Phoenix, Arizona, since January 2014, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for an examination to determine the current nature and extent of his acquired psychiatric disorder. The claims folder should be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. The examiner should identify all current manifestations of the Veteran's psychiatric symptoms, should provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected psychiatric disorder, and assign a Global Assessment of Functioning (GAF) score for this disorder that is consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. Based on a review of the claims file, as well as an interview with the Veteran, the examiner should also provide an opinion as to whether the Veteran's service-connected acquired psychiatric disorder precludes him from securing and following substantially gainful employment that is consistent with his education and occupational experience. The term "substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. The examiner must consider the Veteran's lay statements regarding his disorder. All findings and comments should be set forth in a legible report, and any opinions should be accompanied by a thorough discussion explaining the basis for the given opinion. 3. The RO should also take any additional development it deems necessary, including any additional VA examinations, to adequately adjudicate the claims on appeal. 4. After the above action is completed, if the claims are not fully granted, a supplemental statement of the case should be issued on the issues of entitlement to an increased rating for an acquired psychiatric disorder as well as entitlement to PTSD. The RO is reminded that the period on appeal extends from the time of his initial claim for benefits in December 2005. When completed, the claims file should be returned to the Board for further appellate consideration. 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). _________________________________________________ JOHN J. CROWLEY 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).