Citation Nr: 1803548 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-15 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1966 to December 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals on appeal from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The RO in St. Petersburg, Florida has assumed the role of Agency of Original Jurisdiction (AOJ). In June 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference at a Board hearing. A copy of that transcript is of record. The issue of TDIU was most recently adjudicated by the AOJ by way of a March 2015 rating decision. At the Board hearing, the Veteran alleged unemployability as a result of the increased rating claim for PTSD on appeal. Thus, the Board takes jurisdiction over this claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Increased Rating for PTSD The Board finds that a more contemporaneous examination is required prior to appellate adjudication regarding the severity of the Veteran's PTSD. The Veteran was last afforded a VA psychological examination in July 2010. Since that time, the Veteran has testified that his symptoms have worsened. See Board Transcript, p. 10. In support of his claims, the Veteran has submitted a competent and credible statement from his wife, attesting to her observations of the Veteran's symptoms. Given these statements, the Board finds that another VA examination assessing the Veteran's symptoms is necessary. The Board notes that in support of his claim for an increased rating, the Veteran submitted a Disability Benefits Questionnaire and statement from a private clinician. In the DBQ, Dr. R.W.P. listed the Veteran's symptoms and opined that the Veteran's PTSD rendered him totally impaired. Although the Board does not presently find the DBQ to be incredible, the DBQ and accompanying statement, without more, are not highly probative as to the issue of the severity of the Veteran's PTSD. Notably, a disability rating for a psychiatric disability is based on the severity, frequency and duration of the associated symptoms. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The private DBQ and statement, while helpful in some aspects, does not give a detailed analysis of the frequency, duration, or severity of the Veteran' PTSD symptoms, a crucial element in assessing the effect of his PTSD and assigning an accurate disability rating. Given the above, remand is required for another VA examination. Entitlement to TDIU The Veteran contends that his service-connected disabilities render him unemployable. Here, although the Veteran does not meet the schedular requirements as indicated in 38 C.F.R. § 4.16(a), in exceptional circumstances, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Here, the record contends opinion from a private psychologist indicating that the Veteran's PTSD renders him unemployable. See Statement dated August 18, 2017. Upon remand and adjudication of the claim for an increased rating for PTSD, the ALJ should readjudicate the claim of entitlement to TDIU on a schedular basis. If the Veteran is not entitled to schedular consideration of TDIU, the issue should be referred to the Director of C&P for extraschedular consideration. The Board retains jurisdiction over the matter as the decision by the Director of C&P is reviewable by the Board. Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and with their help, identify any and all outstanding VA and private treatment records related to the disabilities on appeal, to include VA medical centers in Providence, Rhode Island, and Hyannis, Massachusetts. After obtaining all necessary authorizations, associate the records with the claims file. 2. Schedule the Veteran for a VA psychiatric examination to assess the current severity of the Veteran's PTSD. The claims file should be made available to and reviewed by the examiner. The clinician should opine as to the affect the Veteran's PTSD has on his employability. 3. Readjudicate the claims. If the Veteran does not meet the schedular requirements for TDIU, refer to the Director of C&P the issue of extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b). In rendering the above opinion, the Director of Compensation Service should consider and address the Veteran's educational background, employment history, and training. 4. Thereafter, if the benefits sought on appeal are denied, provide the Veteran and his representative with a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ T. MAINELLI 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) (2016).