Citation Nr: 18152353 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-54 680 DATE: November 21, 2018 REMANDED Entitlement to an effective date earlier than March 31, 2015, for the grant of service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision that granted service connection for PTSD and assigned a disability rating of 50 percent, effective March 31, 2015. The Veteran filed a timely Notice of Disagreement (NOD) that took issue with the disability rating assigned and the effective date of the grant. It also took issue with the fact that entitlement to a TDIU was not adjudicated, arguing that this issue was raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the Statement of the Case (SOC) that followed, the Regional Office (RO) denied entitlement to a disability rating in excess of 50 percent for PTSD as well as entitlement to a TDIU. It did not address the issue of an earlier effective date. The Veteran appealed to the Board in November 2016, indicating that he wished to appeal all of the issues listed on the SOC, and noting that he would submit a formal, written argument once the claim was certified to the Board. In the April 2017 written brief that followed, the Veteran’s representative reiterated that the Veteran had appealed TDIU, his disability rating, and the effective date of the grant. 1. Entitlement to an effective date earlier than March 31, 2015, for the grant of service connection for PTSD is remanded. As stated above, the Veteran submitted a timely NOD following the July 2015 rating decision and specifically took issue with the effective date of the grant of service connection for PTSD. However, an SOC has not yet been issued. A remand is required for the RO to issue an SOC before the Board can adjudicate this matter. 38 C.F.R. § 20.200 (2017); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 2. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. VA’s duty to assist includes obtaining a medical examination when it is necessary to decide a claim. See 38 U.S.C. § 5103A(d) (2012). Furthermore, when VA undertakes to provide an examination, it must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The only VA examination of record took place in July 2015 in conjunction with the Veteran’s original claim for service connection. No additional medical evidence has been submitted regarding the current state of the Veteran’s PTSD, except for a few brief treatment notes. Unfortunately, the July 2015 examination is inadequate to decide the claim. The Veteran’s medical records indicate that the Veteran has been diagnosed with depression since 2011, and they include multiple notations showing that the Veteran suffers from suicidal ideation. However, the examiner found that the Veteran’s depression does not relate to the Veteran’s PTSD without providing an adequate rationale. Instead, the examiner said only that “[the Veteran’s] answers [regarding depression] were equivocal and unclear” and “I got no sense of extensive depressive episodes.” In her April 2017 argument, the Veteran’s representative specifically took issue with the examiner’s failure to adequately address the Veteran’s depression in his discussion of the severity of the Veteran’s PTSD. Given the time passed since the last examination and the July 2015 examiner’s failure to adequately address all of the Veteran’s symptoms, the Board finds that a new VA examination is warranted to ensure that the evidence of record accurate reflects the current severity of the Veteran’s PTSD. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Caffrey v. Brown, 6 Vet. App. 377 (1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (an examination is inadequate if it provides an incomplete analysis or an insufficient rationale for an opinion rendered). In light of the remand, the Veteran should be provided an opportunity to submit additional evidence. As for VA treatment records, the claims file contains records only as recent as September 2016. Thus, on remand, updated records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA and, as such, should be obtained and included in the record). Finally, at his July 2015 VA examination, the Veteran indicated that he has not worked since 2013. It is unclear whether he is currently in receipt of any disability benefits from the Social Security Administration. On remand, these records, if any, should be obtained. 3. Entitlement to a TDIU is remanded. The Veteran contends that his PTSD renders him unemployable and that a TDIU is, therefore, warranted. VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and when the veteran has certain combinations of ratings for his service-connected disabilities. 38 C.F.R. § 4.16. If the veteran has only one such disability, that disability must be ratable at 60 percent or more. If he has two or more disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Currently, the Veteran is only service-connected for PTSD, and he is rated at 50 percent. Accordingly, he does not meet the schedular requirements for a TDIU. Thus, consideration of entitlement to a TDIU depends, in large part, on the outcome of his claim for a higher rating for his PTSD and the impact that the Veteran’s PTSD has on his ability to obtain or retain substantially gainful employment. Thus, the matter of a TDIU is inextricably intertwined with the claim remanded herein and remand of the TDIU claim is also required. Harris v. Derwinski, 1 Vet. App. 180 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). In light of the remand, the RO should obtain additional information about the Veteran’s work history. As mentioned above, the Veteran asserted in his NOD that the issue of entitlement to a TDIU was raised by the record. Consequently, the Veteran was served appropriate notice as to the elements of a TDIU claim and he was asked to complete a VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability. However, the Veteran did not complete this form and, in its SOC, the RO denied entitlement to a TDIU because the evidence of record did not show that his PTSD prevented substantially gainful employment. The Veteran finally submitted his TDIU application form in March 2017; however, VA has not obtained documents related to the Veteran’s employment history as set out therein. On remand, these records must be obtained. The matters are REMANDED for the following action: 1. Send the Veteran and his representative an SOC that addresses the issue of entitlement to an effective date earlier than March 31, 2015. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Refer to the Veteran’s VA Form 21-8940, submitted in March 2017, to verify the nature of the Veteran’s employment history, work schedule, and income consistent with the procedures outlined in the M-21 VA Adjudication Procedure Manual. 3. Ask the Veteran to complete a VA Form 21-4142 for any private treatment he received regarding his PTSD. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 4. Obtain the Veteran’s VA treatment records for the period from September 2016 to the present. 5. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. (continued on next page) 6. Schedule the Veteran for a VA psychiatric examination to address the current severity of his 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. The VA examiner should specifically consider whether, at any point since 2011, the Veteran suffered from depression and whether that condition is an aspect of his PTSD. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel