Citation Nr: 1639279 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 13-25 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 for coronary artery disease (CAD). 2. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of September 2011 and February 2012 rating decisions of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2016. The Board has also included the issue of whether a TDIU rating is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regarding the claim for an increased rating for PTSD, a review of the entire claims file shows that the Veteran's last examination was in September 2011, five years ago. At his July 2016 videoconference hearing, the Veteran reported having problems communicating with family members and having a temper. He also stated that he didn't like crowds, was not fond of people and had problems with anxiety. He noted that he had been married for 34 years. He also noted that he did not work because he would get into arguments with his coworkers. The record raises the question as to the current severity of his service-connected PTSD. The issue must be remanded to afford him a new VA examination to determine the current severity of his PTSD, as well as his employability due to his service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Regarding the claim for an increased rating for CAD, a review of the entire claims file shows that the Veteran's last examination was in June 2011, over five years ago. At his July 2016 videoconference hearing, the Veteran reported having his heart monitored 3 to 4 times a year. He noted that he was treated by Dr. Sandler at the Shore Heart Group. He also stated that he had to stay away from strenuous activities, such as playing softball. Because there may have been changes in the Veteran's condition since the last VA examination, the Board finds that a new heart examination would assist in fully and fairly evaluating the Veteran's claim for an increased initial rating. See Allday v. Brown, 7 Vet. App. 517 (1995). The record shows that the Veteran submitted private treatment records from the Shore Heart Group and a waiver of initial RO consideration following his July 2016 videoconference hearing. At his hearing, the Veteran noted that he received treatment for his service-connected PTSD at the James J. Howard VA Community Based Outpatient Clinic and Lakewood Vet Center. For his service-connected CAD, the Veteran noted that in addition to his private treatment, he had been seen for his heart condition at the James J. Howard VA Community Based Outpatient Clinic and the VA Medical Center in East Orange, New Jersey. As such, all relevant VA medical records should be requested. 38 U.S.C.A. § 5103A (c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In light of Rice and the remand of the claims for a higher initial ratings for PTSD and CAD, the TDIU rating issue must be remanded because the claims are inextricably intertwined and must be considered together. Thus, a decision by the Board on the Veteran's TDIU rating claim would, at this point, be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) letter addressing his claims, specifically the TDIU claim. 2. Obtain complete VA treatment records from the VA Community Based Outpatient Clinic in Brick, New Jersey, the Lakewood Vet Center, the VA Medical Center in East Orange, New Jersey, and any other VA medical facility from which the Veteran receives treatment for his service connected PTSD and service-connected CAD. 3. Schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of his service-connected PTSD. The Veteran's electronic claims file should be reviewed in conjunction with the examination. All necessary tests and studies should be conducted in order to identify the degree of social and occupational impairment attributable the Veteran's service-connected PTSD. The report of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner should also specifically discuss the impact the Veteran's PTSD, along with service-connected coronary artery disease and type II diabetes mellitus, has on his ability to obtain and maintain substantially gainful employment without regard to age and non-service connected conditions, and with consideration of his education and vocational background. The report of examination should include an explanation for all opinions rendered. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected CAD disability. The Veteran's electronic claims file should be reviewed in conjunction with the examination. The examiner is to conduct all necessary tests and studies. The examiner should specifically describe the Veteran's workload in METs and the resulting symptoms and provide an ejection fraction reading. The examiner should also specifically discuss the impact the Veteran's CAD, along with PTSD and type II diabetes mellitus, has on his ability to obtain and maintain substantially gainful employment without regard to age and non-service connected conditions, and with consideration of his education and vocational background. The report of examination should include an explanation for all opinions rendered. 5. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case 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). 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). _________________________________________________ A. C. MACKENZIE 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).