Citation Nr: 1806633 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-15 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to June 8, 2012 and a 50 percent rating from that date. 2. Entitlement to a total rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to June 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The March 2012 rating decision granted service connection for PTSD and assigned an initial 30 percent rating, effective April 22, 2011, the date of the claim for service connection. In April 2015, this appeal was remanded in order to afford the Veteran a videoconference hearing with a Veterans Law Judge (VLJ) in accordance with his request. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2015 regarding the issues pending before the Board at that time. A transcript of the hearing is associated with the claims file. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. In December 2015, the Board denied an initial rating higher than 30 percent for PTSD for the appeal period prior to June 8, 2012 and granted an increased rating of 50 percent from that date. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). A May 2017 Court Memorandum Decision set aside the Board's decision and remanded for further adjudication consistent with the Court decision. With respect to the TDIU claim, the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim of entitlement to TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. At the time of the August 2012 VA disability benefit questionnaire (DBQ), the examiner indicated that the Veteran's PTSD symptoms caused total occupational impairment. During his August 2015 hearing, the Veteran reported that he last worked on a part-time basis in the spring of 2015 and last worked on a full-time basis in 2000 or 2002; however, his PTSD symptoms always gave him problems with relationships with people on the job. In light of the periods of unemployment or employment on a part-time basis, along with evidence that the Veteran's PTSD symptoms impact his employment, the issue of TDIU has been raised in conjunction with the increased rating claim for PTSD. The Board accordingly finds that this issue is presently before it pursuant to Rice, and must be considered in adjudication of this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that further AOJ action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. During his August 2015 hearing, the Veteran suggested that his PTSD symptoms have increased in severity since he was last examined in June 2015. More specifically, the Veteran indicated that he has had thoughts of suicide. He stated 21-8940that he had problems with other people and at times wanted to hurt them if he felt disrespected. He reported that there were a few times that his wife had to remind him to take a shower or change his clothes. He alluded to visions during the day and nightmares and night sweats during the night. He sometimes heard voices during the day, including screaming and crying, and often avoided activities that reminded him of certain events because he did not want to do anything that would hurt or embarrass somebody or himself. He claimed that his psychiatrist told him that his PTSD was getting worse. Indeed, as such symptoms were not reported at the time of his June 2015 examination, a remand is necessary in order to schedule him for an appropriate VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Although the record reflects that the Veteran has worked on an intermittent or part-time basis during the course of the appeal, during his hearing, the Veteran indicated that his PTSD symptoms gave him problems with relationships with people on the job, likewise, the June 2015 VA examiner noted that the Veteran reports of significant stress/problems associated with employment and an August 2012 VA examiner indicated that the Veteran's PTSD symptoms caused total occupational impairment. On remand, the AOJ should solicit from the Veteran and his representative, a comprehensive VA Form 21-8940, which dictates in detail the Veteran's educational and employment history. Furthermore, on remand, the Veteran and his representative should be asked to submit the Veteran's tax forms with regards his income for the years of 2011 through 2017. Obtain and associate with the Veteran's electronic claims file any outstanding relevant VA treatment records dated after January 2016. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit an updated and completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran must report his earned annual income for the years 2011 through 2017 and must include copies of his Federal Tax returns for each year with a statement that the copy is an exact duplicate of the return filed with the IRS. In the alternative, he may provide IRS Form 4506-T "Request for Transcript of Tax Return" for the years 2011 through 2017. The required form may be obtained at: https://www.irs.gov/pub/irs-pdf/f4506t.pdf. 2. Advise the Veteran and his representative that the Veteran may submit and other evidence documenting any past or prospective marginal employment (employment secured or followed that resulted in earned annual income that did not exceed the poverty threshold for one person). 3. Obtain and associate with the Veteran's electronic claims file any outstanding relevant VA treatment records dated after January 2016. 4. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected PTSD. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. (a) The examiner should identify and describe the extent, frequency, and severity of all current psychiatric symptomatology associated with the Veteran's PTSD, rendering specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; disturbances in motivation and mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; obsessional rituals; difficulty in adapting to stressful situations; difficulty in or inability to establish/maintain effective work and social relationships; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. See September 2011, August 2012, May 2013, and June 2015 VA examination reports, VA treatment records, and August 2015 hearing testimony. (b) The examiner should also provide an opinion concerning the current degree of social and occupational impairment resulting from the service-connected PTSD. The examiner is asked to provide a full description of any functional effects that the Veteran's PTSD has on his activities of daily living, to include his ability to work. The rationale for all opinions offered should be provided 5. Then, after completing any other development deemed necessary, readjudicate the issues of entitlement to an increased initial rating for PTSD and entitlement to a TDIU. 6. If the evidence demonstrates that the Veteran's service-connected disabilities preclude gainful employment, and that he does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for any portion of the appeal period, the AOJ should refer the case to the VA's Director of Compensation Services for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). 7. If any benefit sought is denied, in whole or in part, the AOJ should furnish the Veteran and his representative a Supplemental Statement of the Case and a reasonable opportunity to respond before returning the record to the Board for further review. The appellant 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 (West 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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).