Citation Nr: 1646299 Decision Date: 12/09/16 Archive Date: 12/21/16 DOCKET NO. 09-42 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision, which denied entitlement to a higher disability rating for posttraumatic stress disorder. The Board previously remanded the matter in September 2013 to schedule the Veteran for a hearing. The Veteran testified before the undersigned during a July 2016 hearing. A transcript is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During his July 2016 hearing, the Veteran asserted that his posttraumatic stress disorder has worsened since his last VA examination in March 2012. As the record does not contain medical evidence regarding the nature and extent of the Veteran's service connected posttraumatic stress disorder after August 2012, in light of the testimony presented a remand to obtain outstanding relevant medical records and a new VA examination regarding the current severity of the Veteran's posttraumatic stress disorder is necessary. The Veteran also appears to assert during his July 2016 hearing that he is unable to maintain substantially gainful employment due to his service-connected posttraumatic stress disorder. In this regard, while the appellant has reported working, he does not work full time, and marginal employment is not substantially gainful employment. Cf. generally, Faust v. West, 13 Vet. App. 342, 356 (2000). When a total disability evaluation based on individual unemployability for a service-connected disability is raised in connection with an increased rating claim for that service-connected disability, the Board has jurisdiction over the issue because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the claim of entitlement to individual unemployability benefits is included in the Veteran's current appeal, and a remand for development of the issue is appropriate. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any outstanding treatment records from all pertinent VA facilities, to include all Vet Centers, in Virginia Beach, Virginia regarding the Veteran's posttraumatic stress disorder since January 2012. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Then, schedule the Veteran for a VA examination by a psychiatrist/psychologist regarding the current severity of his posttraumatic stress disorder. The examiner should review the claims files, as well as all electronic Virtual VA and Veterans Benefits Management System claims files, a copy of this Remand, and the Veteran's July 2016 hearing testimony. The psychiatrist/psychologist should conduct all necessary tests and identify any symptoms and functional impairments due to posttraumatic stress disorder alone. The psychiatrist/psychologist should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his posttraumatic stress disorder on his employment. After a full examination and review of the claims file, the psychiatrist/psychologist should identify all limitations imposed on the Veteran as a consequence of his posttraumatic stress disorder. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached. The psychiatrist/psychologist is advised that while the Veteran is not competent to provide a specific diagnosis or medical opinion, he is competent to report symptoms and functional limitations. However, while the absence of corroborating clinical records may NOT be the determinative factor, the terms competence and credibility are not synonymous. 3. After the development requested has been completed, the AOJ should review any examination reports and medical opinions to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. When the development requested has been completed, the issues on appeal should be readjudicated by the AOJ on the basis of additional evidence. If any benefit sought is not granted, provide the Veteran and his representative a Supplemental Statement of the Case and a reasonable opportunity to respond before returning the record to the Board. 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 remanded by the Board of Veterans' Appeals or 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). _________________________________________________ DEREK R. BROWN 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).