Citation Nr: 1636665 Decision Date: 09/20/16 Archive Date: 09/27/16 DOCKET NO. 11-17 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from April 16, 2009. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1989 to June 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Regarding the added TDIU claim, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (the Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. As explained below, the issue of entitlement to a TDIU has been raised by the record, and as such, it is also considered to be on appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he is entitled a rating in excess of 50 percent for his service-connected PTSD. As will be discussed below, issue of entitlement to a TDIU has also been raised. As for the Veteran's PTSD claim, the Board is concerned that the VA PTSD examinations of record are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (providing that once the VA undertakes an effort to provide an examination, it must ensure the examination was adequate). A May 2009 VA examiner noted the presence of inappropriate behavior, obsessive or ritualistic behavior, homicidal thoughts, suicidal thoughts, and episodes of violence. However, this examiner assessed the Veteran's Global Assessment of Functioning (GAF) score as 63, which corresponds to only mild symptoms and some difficulty in social, occupational, or school functioning, but general functioning pretty well. The Veteran provided a private opinion from counseling sessions in May and June 2009. The private examiner noted that the Veteran's PTSD resulted in suicide attempts, suicidal ideations, chronic anger and irritability, depression, anxiety, panic attacks, a sleep disorder with nightmares, suspiciousness and trust issues, hypervigilance, and difficulty with interpersonal relationships. This private examiner assessed the Veteran's GAF score as 43, which corresponds to serious symptoms or any serious impairment in social, occupational, or school functioning. More recently, a March 2016 VA examiner opined that the Veteran's PTSD results in occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The VA examiner's report also noted that the Veteran has been married five times, does not interact with his sons living at home, and may resign from his current job as a truck driver. The VA examiner noted that the Veteran's symptoms include irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance, sleep disturbances, depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board is concerned that these examinations are inconsistent as to the severity of the Veteran's PTSD symptoms. The Board is also concerned that the VA examiners failed to note or fully address references in the record to past suicide attempts and suicidal thoughts, episodes of violence, or homicidal thoughts. Furthermore, treatment notes from May 2009 indicate the Veteran had been working as a machine operator for 15 months and as a supervisor at a veterinary supply store prior to that time. The VA examination report from the same month clarified that the Veteran had been working for four to five years at the veterinary supply store but quit after being demoted. The May and June 2009 private opinion described the Veteran doing farm work, working for a manufacturing firm, working in the correctional system, and working erratically at a trucking company before his work for the veterinary supply store and as a machine operator. The March 2016 VA examiner recorded that the Veteran had been working as a truck driver for the previous four weeks and was considering quitting that day. The symptoms reported by the May 2009 VA examiner and the May and June 2009 private examiner suggest that the Veteran's PTSD could significantly interfere with his ability to maintain employment. However, at the March 2016 VA examination the Veteran was employed full time, although he did indicate a desire to quit. The Board finds that a remand is necessary for additional development to clarify whether the Veteran is capable of maintaining substantial gainful employment. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Provide the Veteran with appropriate notice regarding the claim for TDIU, and undertake appropriate development to obtain information regarding the Veteran's educational and occupational history, as deemed necessary. In particular, the Veteran should be asked to complete a formal application for TDIU. 3. After obtaining any outstanding records, to the extent possible, schedule the Veteran for a VA examination to determine the current nature and severity of the Veteran's PTSD. The entire claims file must be reviewed by the examiner in conjunction with the examination. The examiner should indicate on the examination report that the claims folder was reviewed before the examination took place, specifically the examiner should note review of the May 2009 and March 2016 VA examination reports as well as the May and June 2009 private opinion. In the report of the examination, the examiner should: (a) identify the symptoms (and associated impairment of function) that the Veteran currently manifests that are attributable to his PTSD, and provide a detailed description of such symptoms, to include the frequency, severity, and duration with which the Veteran experiences such symptoms and which symptoms are related to the Veteran's service-connected PTSD and which symptoms are related to his non-service connected disabilities; and (b) list all symptoms as well as the levels of social and occupational impairment experienced by the Veteran that are attributable to PTSD; to the extent possible, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging in with his current service-connected disability, given his current skill set and educational background, but not his age or any impairment caused by nonservice-connected disabilities. In rendering the opinion, the examiner should address findings from the previous VA examinations, the May and June 2009 private opinion, and treatment records. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 4. After the above development has been completed, adjudicate the claim. If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ MICHAEL LANE 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).