Citation Nr: 18160265 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-25 330 DATE: December 26, 2018 REMANDED Entitlement to a disability rating greater than 50 percent from November 1, 2018 for posttraumatic stress disorder (PTSD) is remanded. Whether the rating reduction from 100 percent to 50 percent effective November 1, 2018 for PTSD was proper is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2001 to May 2006. He testified before the undersigned Veterans Law Judge during a December 2018 video conference hearing. The hearing transcript is not presently of record because the Board processed this appeal through the One Touch Program. However, the transcript will be associated with the file in the ordinary course of business. When a request for a TDIU is made during the pendency of a claim for an increase, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits; rather, it involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Here, the evidence of record raises the issue of entitlement to a TDIU due to the Veteran’s service-connected PTSD. See, e.g., October 2014 VA mental health note (opining that Veteran’s service-connected PTSD symptoms have rendered him unemployable). While he is working currently, it appears there have been times during the appeal period where he was unemployed. See 2015 VA examination report. Therefore, an implied TDIU claim is before the Board. During the pendency of this appeal, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s disability rating for his service-connected PTSD from 50 percent to 70 percent from January 8, 2014, and to 100 percent from August 13, 2015. See February 2016 rating decision. In April 2018, the AOJ proposed to reduce the 100 percent rating to 50 percent based on March 2018 VA examination findings and notified the Veteran accordingly. In an August 2018 rating decision, the AOJ reduced the 100 percent rating to 50 percent, effective November 1, 2018, as proposed. The Veteran stated during the 2018 Board hearing that he was satisfied with the disability ratings assigned for his PTSD from January 8, 2014 to August 12, 2015 (70 percent) and from August 13, 2015 to October 31, 2018 (100 percent). However, he did not agree with the reduction in rating, and, as the AOJ reduced the PTSD rating during the pendency of the Veteran’s increased rating appeal, the Board finds that the propriety of that reduction is also before the Board as part of the pending appeal. The Board has rephrased the issues on appeal pertaining to the PTSD ratings accordingly. The increased rating claim for PTSD is remanded for the following development: - VA treatment records: The most recent VA outpatient treatment records in the claims file are from February 2016. However, the record references more recent, pertinent VA treatment. See 2018 Board hrg. tr.; see also March 2018 VA examination report. The AOJ must associate all outstanding VA treatment records with the claims file. - Current VA examination: A new VA examination is needed to assess the current state of the Veteran’s service-connected PTSD because during the 2018 Board hearing, he asserted worsening symptoms since the most recent, March 2018 VA examination. The examiner must comment on how his PTSD functionally impacts his ability to work. Furthermore, the AOJ must issue a Supplemental Statement of the Case (SSOC) regarding the propriety of the reduction of the PTSD rating from 100 percent to 50 percent effective November 1, 2018. The TDIU claim is remanded as inextricably intertwined with the remanded increased rating claim. Also, as the Board has taken jurisdiction over the inferred TDIU claim under Rice, supra, the AOJ must notify the Veteran of the legal requirements for substantiating the claim and ask him to submit a completed VA Form 21-8940 (TDIU claim form). As the TDIU claim must be remanded for the reasons stated above, the AOJ also should conduct the following development: - Obtain a current VA examination of the Veteran’s service-connected lumbar spine condition and functional impact findings, as the last VA spine examination was in May 2014; - Obtain the Veteran’s complete VA vocational rehabilitation file. The matter is REMANDED for the following action: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) notice (cc’ing his representative): explaining the legal requirements for substantiating a TDIU claim; asking him to submit a completed VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); and inviting him to submit any employment or other pertinent records he may have. He should provide his employment and earnings history for the past five years, since his claim for an increase was received in 2014.   2. Obtain the Veteran’s VA treatment records from the following facilities and time periods: (a.) VA Eastern Kansas Health Care System and all associated outpatient clinics (including Garnett) from February 2016 to August 2016; and from August 2018 to the present (if any); (b.) Orlando, FL VA Medical Center and all associated VA outpatient clinics (OPCs / CBOCs), including the Clermont, FL CBOC, from August 2016 through August 2018; 3. Obtain the Veteran’s complete VA vocational rehabilitation services file. Document all requests and any negative responses, and notify the Veteran and his representative accordingly. 4. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 5. Schedule a VA psychiatric examination to address the current nature, symptoms, and severity of the Veteran’s service-connected PTSD. The examiner must note his or her review of the complete claims file. The examiner must comment on the functional impact of this disability on the Veteran’s ability to work, with a full supporting rationale. Please expressly consider: detailed occupational history in April 2014 VA examination report, including the Veteran’s report of multiple jobs in a relatively short period and verbal altercations with a former supervisor; favorable October 2014 unemployability statement by VA mental health provider; VA mental health treatment records noting difficulty working around others. If any findings are not possible without resort to mere speculation, then the examiner must explain why. 6. Schedule a VA examination to address the current nature, symptoms, and severity of the Veteran’s service-connected lumbar spine disability. The examiner must note his or her review of the complete claims file. The examiner must comment on the functional impact of this disability on the Veteran’s ability to work with a full supporting rationale. Please expressly consider: detailed occupational history in the April 2014 VA examination report, including the Veteran’s reports that his doctor recently told him that he would be unable to continue working as a truck driver due to his back problems, and that he left a prior position due to his back problems; multiple VA outpatient treatment records throughout the appeal period noting narcotic pain medications for chronic lumbar spine pain, e.g., June 2014 physical rehabilitation note (referencing work as truck driver and sedative effects of hydrocodone; the provider told the Veteran that his work as a truck driver was contributing to his chronic low back pain and recommended that the Veteran switch careers). If any findings are not possible without resort to mere speculation, then the examiner must explain why.   7. After completing the above and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, then issue an SSOC. The RO must address whether the reduction in rating was proper as well as the inferred TDIU issue. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel