Citation Nr: 1756852 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-13 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) and adjustment disorder with anxious mood. 2. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1969 to July 1972. This case originally came before the Board of Veterans Appeals (Board) on appeal of a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran was originally granted a 10 percent disability rating for anxiety disorder not otherwise specified in May 2013. In January 2014, the Veteran was granted a 30 percent rating for PTSD and adjustment disorder with anxious mood. As this was not a full grant of benefits and the Veteran has not withdrawn the claim, the issue of an initial rating in excess of 30 percent for service-connected PTSD and adjustment disorder with anxious mood is still before the Board. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran had a hearing before the undersigned in February 2017; the transcript is of record. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU was raised by testimony at the hearing before the undersigned; therefore, the issue is added to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's most recent mental health VA examination was conducted in January 2014. The Veteran testified in a Board hearing that his PTSD symptoms and the affect they have on his social and occupational function were not adequately represented in his January 2014 VA examination. As such, it appears that the January 2014 VA examination does not represent the current severity of the Veteran's mental health disorder. Therefore, the case must be remanded to provide the Veteran with a new examination regarding the severity of his mental health disorder. Further, in a March 2014 Decision Review Officer hearing, the Veteran stated that he attended a weekly PTSD group therapy session and has individual counseling at a VA center. In the February 2017 Board hearing, the Veteran stated that he continued to attend group therapy sessions. The Board also notes that the record contains an August 2013 letter from the psychiatrist, Dr. D., of the Veteran's group therapy sessions that stated the Veteran had a diagnosis of PTSD. The record only contains VA mental health treatment records from January 2014 to March 2014. Therefore, a remand is necessary to obtain the Veteran's mental health records, specifically records from Dr. D. Finally, the Veteran stated in the February 2017 Board hearing that he stopped working because of a combination of his service-connected hearing loss and fatigue (a symptom he attributed to his service-connected mental health disorders). The Board treats this statement as an inferred claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Upon remand, the RO should provide the Veteran with a TDIU application form (VA 21-8940) and allow the Veteran to provide evidence of his unemployability. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran fill out a current formal TDIU application form (VA Form 21-8940). 2. Obtain any updated VA treatment records related to the Veteran's mental health disorders. Obtain any records from the Veteran's VA psychiatrist Dr. D. 3. After the Veteran's VA treatment records have been obtained, schedule the Veteran for a VA examination to determine the current severity of his PTSD and adjustment disorder with anxious mood. The examiner should be directed to elicit a complete history from the Veteran. All indicated testing should be carried out and the results recited in the examination report. Following examination, interview of the Veteran, and review of the claims file, the examiner should identify the manifestations of the Veteran's service-connected PTSD and adjustment disorder with anxious mood. The examiner should report all signs and symptoms necessary for rating the Veteran's mental health disorders and address the level of social and occupational impairment attributable to the Veteran's PTSD and adjustment disorder. The examiner should address the Veteran's competent statements that he had trouble sleeping; had difficulty in crowds; did not have a good relationship with anyone in his family, including two divorces; had a limited social circle; had difficulty dealing with stress; had negative relationships at work; and had difficulty with short term memory loss. The examiner should provide a clear rationale for all opinions and a discussion of the facts and medical principles involved. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).