Citation Nr: 18153889 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-35 393 DATE: November 28, 2018 REMANDED Entitlement to an increased disability rating, in excess of 50 percent, for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to total disability due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marine Corps from January 2010 to July 2014. 1. Entitlement to an increased disability rating, in excess of 50 percent, for service-connected posttraumatic stress disorder (PTSD) is remanded. In November 2015, the Veteran submitted his notice of disagreement (NOD) with the agency of original jurisdiction’s rating decision. Therein, the Veteran posited that, “I would like a DRO review and be there in person.” The Veteran continued with, “I’m constantly worrying something bad will happen. Mood swings from anxiety I get anxious, irritated and angry daily. I have near continuous panic or anxiety. Wife does all finances or anything I view as stressful. Wife has to make sure I eat due to anxiety and nausea. Wife encourages hygiene such as shaving brushing teeth and showering. I will not leave the house unaccompanied unless its school where I have continuous anxiety.” In July 2015, the Veteran underwent a VA examination to consider the nature and etiology of any currently endured acquired psychiatric disorder. In the resultant examination report, Dr. LKS identified DSM-5 diagnoses for PTSD and mild cannabis use disorder. At that time, Dr. LKS noted that, “is very likely that his substance use disorder is either caused by, and/or maintained by, his PTSD . . ..” Ultimately, Dr LKS observed, “occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” The symptoms noted by Dr. LKS included: anxiety, weekly panic attacks, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. During the examination, the Veteran appeared mildly dysthymic and anxious. The Veteran denied current suicidal or homicidal ideation, plan or intent. In April 2018, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). At that time, the undersigned VLJ asked the Veteran whether his PTSD had gotten better or worse after his July 2015 VA examination. The Veteran replied that, “(i)n 2015, immediately after it took a significant dive. I can fight through depression, I can still do things. But with the debilitating anxiety to where you can’t move, that was significantly worse from the exam.” The Board finds that the AOJ must provide the Veteran with updated VA examination to assess the current severity of his service-connected PTSD. During the April 2018 Board hearing, the Veteran testified that his disability has worsened, resulting in an overall increase in his disability. As such, the Board finds the Veteran should be afforded a new VA examination to determine the current severity of his service-connected PTSD disability. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). 2. Entitlement to total disability due to individual unemployability (TDIU) is remanded. In November 2015, the Veteran submitted his notice of disagreement (NOD) with the AOJ’s rating decision. Therein, the Veteran posited that, “I have not been able to get a job due to anxiety attacks that limit me daily. I have missed several morning classes due to anxiety and nausea (vomiting).” In April 2018, the Veteran supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). At that time the undersigned VLJ asked the Veteran about his current employment status. The Veteran replied that, “I kind of just freelance. If I can help someone do lawn work or something like that. I try to pick up as much odd jobs as I can where I don’t have to deal with people. Anything in a social environment, I probably wouldn’t accel at.” The Veteran also reported that he attempted to work as an Uber driver. The Veteran testified that, “I honked back and her boyfriend tried to get out of the car to come confront me. I hopped up on my seat, grabbed my pistol that was under my seat. I put the pistol at the back window and he got back in the car when he saw the handgun on me. I had two Uber passengers with me and I scared them. It’s like a normal thing for me.” In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the Board finds that the issue of entitlement to TDIU rating has been raised by the record. However, before the Board can proceed with consideration of TDIU, the inextricably intertwined claim for a higher rating for PTSD must be resolved. Information contained during the examination for PTSD may have an impact on the claim for TDIU. Consequently, these matters are REMANDED to the AOJ for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD. All appropriate tests and studies should be performed. 2. A letter should be sent to the Veteran explaining the need for additional evidence regarding a TDIU claim under 38 C.F.R. § 4.16; the VA Form 21-8940 should accompany this inquiry. Any additional development should be undertaken as necessary. 3. After accomplishing any additional development deemed appropriate, the AOJ should readjudicate the claims for an increased disability rating for PTSD and entitlement to TDIU. If the benefits sought in connection with the claims remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel