Citation Nr: 1641594 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 10-28 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for anxiety disorder with post-traumatic stress disorder (PTSD), rated initially as 30 percent disabling, as 50 percent disabling from January 27, 2010, and as 70 percent disabling from August 22, 2011. 2. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2003 to July 2006. He received the Combat Infantryman Badge, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for anxiety disorder with PTSD, assigning a 10 percent disability rating effective April 8, 2009. The Veteran notified the Board in July 2010 that he did not want a Board hearing. In June 2010, during the pendency of the appeal, the RO increased the rating for anxiety with PTSD to 30 percent, effective April 8, 2009. In March 2012, the RO increased the rating for anxiety with PTSD to 70 percent, effective August 22, 2011. These decisions constitute a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In an August 2015 decision, the Board denied a rating in excess of 30 percent for the appeal period prior to January 27, 2010, increased the rating to 50 percent for the appeal period from January 27, 2010 to August 21, 2011, and denied a rating in excess of 70 percent for the appeal period from August 22, 2011. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court), and in May 2015, the Court granted a Joint Motion for Remand (JMPR), vacating and remanding the case to the Board for readjudication of ratings in excess of 30 percent (for the appeal period prior to January 27, 2010), 50 percent (for the appeal period from January 27, 2010 to August 21, 2011), and 70 percent (for the appeal period from August 22, 2011). The Board was also instructed to consider the issue of whether entitlement to a TDIU is warranted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was most recently examined by VA for his service-connected anxiety with PTSD in February 2012 and there is evidence that his anxiety with PTSD has increased in severity since that time. The February 2012 examination report indicates that the Veteran maintained his own apartment (but stayed with his parents a significant portion of the time), was married, and was working toward an Associate's Degree. It also notes that the Veteran had panic attacks once per week or less often, and was silent for mention of any memory loss. However, as noted by the JMPR, the Veteran asserted in a statement dated in January 2015 that he experiences daily anxiety to the point that he starts to shake nervously; is depressed most of the time; has nightmares, panic attacks, and flashbacks 3-4 times per week; has few friends and rarely goes to social events; has difficulty concentrating, understanding complex commands, and retaining instructions; deteriorating short-term memory; and impaired sleep. He also indicated that he divorced his wife, had difficulty getting along with colleagues, and lived with his mother who was his designated caregiver appointed by VA. Thus, due to evidence of potentially worsening symptomatology, the Board finds a new VA examination is necessary. With regard to the claim for entitlement to a TDIU, it is unclear whether and when the Veteran became unemployed. As discussed in the JMPR, the Veteran worked at Moore Data Solutions for only one month, from August to September 2009. In addition, in an Application for Increased Compensation Based on Unemployability received in September 2010, the Veteran indicated that he became too disabled to work in July 2009. Other evidence, however, suggests the Veteran is currently employed. In the January 2015 statement, the Veteran noted that he had trouble getting along with his colleagues and that his medications negatively impacted his ability to perform his duties at work. In addition, in a January 2016 VA psychiatry appointment, the Veteran reported that he was working full-time at VA and had not had any issues. As such, clarification on the Veteran's employment history is necessary. Furthermore, although the Veteran has undergone various VA examinations for service connection and increased ratings claims, he has not been afforded a TDIU examination. As such, if the Veteran is found to be unemployed, an examination should be scheduled to determine the combined effect of all of the Veteran's service-connected disabilities on his ability to maintain substantially gainful employment. Finally, updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain from the VA healthcare system all outstanding relevant treatment records of the Veteran dated from February 2016 to present. All records/responses received should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Send the Veteran another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and request that the form be completed and returned to VA. 3. Schedule the Veteran for a VA examination to determine the current level of severity of his service-connected anxiety with PTSD. The examiner should review the claims file and should note that review in the report. All signs and symptoms of any current psychiatric disorder should be reported in detail. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record. The examiner should also specifically describe the overall impact of the Veteran's psychiatric problems on his occupational and social functioning. 4. After the above development has been completed, and if the Veteran is found to be unemployed, schedule the Veteran for an appropriate VA examination to ascertain whether the aggregate effect of the Veteran's service-connected disabilities precludes him from securing and maintaining substantially gainful employment in light of his education and work history. The examiner should review the claims file and should note that review in the report. All pertinent symptomatology and findings must be reported in detail. A complete rationale should be given for all opinions and conclusions expressed. 5. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. 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). _________________________________________________ H. SEESEL 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).