Citation Nr: 1752233 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-07 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from September 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In September 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. 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 afforded a VA examination in September 2012 in connection with his claim. However, during the September 2016 hearing, the Veteran asserted that his condition had worsened since his September 2012 VA examination. In particular, he reported having worsening symptoms of insomnia and isolation. See September 2016 hearing transcript. He also asserted that he continued to experience anxiety, frequent panic attacks, and hallucinations. Id. Therefore, another VA examination is necessary to ascertain the current severity and manifestations of the Veteran's service-connected PTSD. Moreover, during the September 2016 hearing, the Veteran stated he had not worked since 2009 after being fired because he lost his temper on the job. He attributed the behavior to his PTSD. Further, during various medical evaluations, the Veteran has asserted that his PTSD symptoms prevent him from maintaining employment. See August 2011 evaluation where the Veteran reported his panic attacks, depression, and trouble concentrating make it difficult for him to work. See also Veteran statements during medical evaluations in May 2012, July 2012, August 2012 VAMC records and September 2012 VA examination. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Thus, the issue of TDIU has been raised by the record. Under these circumstances, the AOJ should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board further notes that evidence has been added to the claims file that was not previously considered by the AOJ in connection with the claim on appeal, including additional VA treatment records. There is an automatic waiver of initial AOJ review for any evidence submitted by the Veteran; however, as some of the additional evidence was obtained by the AOJ rather than the Veteran, the automatic waiver provision does not apply. In addition, a supplemental statement of the case (SSOC) has not been issued, and the Veteran has not submitted a waiver of the AOJ's initial consideration of the non-automatic waiver evidence. As such, the case should be referred to the AOJ for review and preparation of an SSOC. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his service-connected PTSD, to include any treatment from a Vet Center. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate the records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including any treatment records and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability is viewed in relation to its history", copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. Thereafter, the AOJ should consider whether the Veteran is entitled to TDIU based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history or obtain additional medical evidence or a medical opinion to ascertain the combined impact of the Veteran's service-connected disabilities and resulting occupational impairment, as is deemed necessary. 4. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J.W. ZISSIMOS 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) (2017).