Citation Nr: 1806865 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-16 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 2000 to March 2003. The claim of an initial rating in excess of 50 percent for PTSD with alcohol dependence is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Regional Office (RO) in St. Petersburg, Florida, of the Department of Veterans Affairs (VA). In that rating action, the RO granted service connection and assigned a disability rating of 50 percent. In August 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of the hearing has been prepared and incorporated into the evidence of record. At the hearing, the Board noted that it had assumed jurisdiction over the TDIU claim that had been previously raised during the course of the claim. Thus, that issue is also listed on the title page. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager (Virtual VA) paperless claims file associated with the Veteran's claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Veteran contends that a rating in excess of 50 percent is warranted for service-connected PTSD. He experiences nightmares, hyper alertness, paranoia, irritability, anger, and self-medicates. He also claims that his mental health symptoms cause him difficulty at work. At the time of the 2016 hearing, he expressed difficulty continuing to work. He was down to working only two days per week. Review of the record includes a VA mental health examination report dated in February 2011. Subsequently dated VA records show treatment for pertinent symptoms, but there are no records dated after 2012. It appears from the Veteran's testimony that he has not been treated by VA in recent years for his psychiatric disability, but he believes that his symptoms have worsened. As the Veteran's PTSD results in continued symptoms, and as he and his representative continue to assert that current manifestations warrant an increased rating as to this disorder due to increased severity, the Board finds that, after any outstanding medical records are associated with the claims file, a contemporaneous and thorough VA mental health examination (which takes into account the records of the Veteran's prior medical history, to include any additional medical evidence received subsequent to this remand) would be helpful in resolving the issue on appeal. See Colayong v. West, 12 Vet. App. 524, 532 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Moreover, as to the claim for a TDIU, it is part and parcel of the increased rating claim for PTSD. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011) (determining the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his PTSD. While the claim for TDIU is part of the increased rating claim currently on appeal, the AOJ has not explicitly adjudicated the TDIU claim. Entitlement to a TDIU claim is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed Cir.2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). But there must be cogent evidence of unemployability in the record. See Rice, citing Comer vs. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Therefore, the AOJ must adjudicate this issue of derivative entitlement to a TDIU in the first instance to avoid prejudicing the Veteran. See, e.g., Bernard v. Brown, Vet. App. 384, 394 (1993) (if the Board intends to address an issue that has not been addressed by the RO as the AOJ, the Board must consider whether the Veteran resultantly will be prejudiced). Before adjudicating this derivative claim, the AOJ must send the Veteran a letter complying with 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017), regarding his purported entitlement to a TDIU. And after giving him the opportunity to supplement the record with supporting evidence, this claim should then be adjudicated. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice which informs the Veteran of the evidence necessary to establish a TDIU. The Veteran should also be contacted and asked to provide VA with information regarding his current employment status. He must also be provided a VA Form 21-8940 and instructed that this form must be completely filled out and returned to VA. 2. Copies of updated treatment records, if any, should be obtained and added to the claims file. 3. Then, the AOJ should provide the Veteran with an appropriate VA examination to determine the severity of his PTSD with alcohol dependence. The claims file must be made available to and reviewed by the examiner. The examiner must comment upon the presence or absence, frequency, and severity of the symptoms associated with the Veteran's PTSD with alcohol dependence. The examiner should also comment on occupational impairment. The examiner must provide a complete rationale for all opinions expressed. Note: The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file a copy or copies of the notice or notices of examination sent to the appellant by the appropriate VA medical facility. 4. After completing the above actions, and any other indicated development, the AOJ should then carefully review the medical examination report obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry. 5. The AOJ should then readjudicate the claims on appeal in light of all of the evidence of record. If either issue remains denied, the AOJ should provide the Veteran and his representative a supplemental statement of the case as to the issue(s) on appeal, and afford them a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further appellate review, if in order. 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 (2012). _________________________________________________ BARBARA B. COPELAND 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) (2017).