Citation Nr: 1801088 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-24 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to an increased rating in excess of 50 percent prior to May 1, 2013 and in excess of 70 percent disabling thereafter for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 1, 2013. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran, and R.D., observer ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Army from July 1997 to October 1997, May 2003 to April 2004, and June 2008 to August 2009, with additional service with the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision which denied a rating in excess of 50 percent for service-connected PTSD. In a July 2013 rating decision, the RO increased the rating of service-connected PTSD to 70 percent disabling as of May 1, 2013. The Board finds that this grant was only a partial grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, this claim is now properly before the Board for appellate review. In August 2017, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. A copy of the hearing transcript has been associated with the record. The Veteran did not perfect his appeal for service connection for erectile dysfunction and for back issues which were decided in a May 2013 rating decision; thus, these matters are not properly before the Board. In October 2011 and August 2012, the Veteran requested that his claim be advanced on the docket due to financial hardship. The Board has granted the Veteran's request and this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). During the pendency of the appeal, the Veteran consistently maintained that he is unemployed as a result of his PTSD; thus, a claim for a total rating based on individual unemployability (TDIU) is part and parcel of the current appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2014, the RO granted TDIU, effective July 1, 2013. The issue of whether the Veteran is entitled to TDIU prior to July 1, 2013 remains on appeal. Finally, the Board notes that within an August 2013 substantive appeal, the Veteran contended that the assignment of the effective date for an increased rating of 70 percent for service-connected PTSD should be from the date of his claim on October 28, 2011 and not from May 1, 2013, the date of a VA psychiatric examination. In a February 2016 statement of the case, the RO denied entitlement to an effective date earlier than May 1, 2013 for the grant of a 70 percent evaluation for PTSD. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). Where a veteran asserts that the disability in question has increased in severity since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). In an August 2017 videoconference hearing, the Veteran testified that his service-connected PTSD had worsened, specifically by indicating that he had attempted suicide three times in the past year, in one instance requiring life support, and that he had gross impairment to thought process and communication, and experienced disorientation as to time in place. Notably, the Veteran testified that he left his wife and children and moved to Georgia without remembering where he was or what he did for those two months. While VA treatment records from the Charleston VA Medical Center (VAMC) show the Veteran was admitted in November 2015 for attempted suicide, the Board finds that another VA examination is necessary to determine the current severity of service-connected PTSD prior to rendering a decision on appeal. Further, a remand is required prior to adjudication to the claim for entitlement to a TDIU prior to July 1, 2013. The Board is remanding the appeal for an increased rating for PTSD and because a determination on this issue could substantially affect the TDIU claim on appeal, the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Board finds that a VA examination is necessary to determine whether the Veteran has total occupational impairment as due to service-connected PTSD, currently rated at 70 percent disabling, or as due to a combination of all of his service-connected disabilities. The Board notes that, in a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R.§ 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R.§ 4.2."). The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C. § 5103A (2012). Within an August 2017 videoconference hearing, the Veteran indicated that he attends therapy outside of VA care for PTSD, however, these private treatment records have not yet been associated with the record. Therefore, on remand, the RO should obtain any outstanding private treatment records related to the Veteran's claim and associate them with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should obtain updated authorizations and should attempt to obtain the private treatment records identified by the Veteran for PTSD within the August 2017 videoconference hearing. If the search for such records has negative results, the AOJ should notify the Veteran and place a statement to that effect in the record. 2. After completion of the above development, the Veteran should be afforded an updated VA psychiatric examination to address the current severity of service-connected PTSD. All indicated studies or testing should be conducted. The VA examiner should specifically address the extent of functional impairment caused by the Veteran's service-connected PTSD. 3. The AOJ should then obtain a VA examination and opinion to address the collective impact of all of the Veteran's service-connected disabilities on his employability prior to July 2013. The opining physician should consider and discuss the functional effects resulting from all of the Veteran's service-connected disabilities (i.e., considered jointly) that could impact either daily living or industrial capacity. Any finding that the severity of the combined functional impact on the Veteran's daily living or industrial capacity increased or decreased at any time prior to July 2013 should be specifically identified. The examination report must include a complete rationale for all opinions and conclusions reached. 4. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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). _________________________________________________ K. PARAKKAL 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).