Citation Nr: 1815684 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-34 867A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation due to individual unemployability (TDIU) based on service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over these claims resides with the RO in Los Angeles, California. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran and his representative if further action is required on his part. REMAND While the Board regrets the additional delay, it finds that a remand is necessary to adequately rate the Veteran's PTSD, and to adjudicate the issue of a TDIU. The Veteran seeks an evaluation in excess of 50 percent for his PTSD. The Veteran was last afforded a VA PTSD examination in July 2013. At his videoconference hearing, the Veteran testified that his symptoms had become increasingly worse over the past four years. See October 20, 2017 Hearing transcript, pp. 18-19. The Veteran testified that he has racing thoughts, experiences panic attacks and experiences significant difficulty dealing with others, particularly men. See Hearing transcript, pp. 20-22. The Veteran's testimony indicates that his PTSD has worsened since his last VA examination. VA's duty to assist includes providing a new VA examination where the evidence suggests that the condition has materially worsened since the last VA examination of record. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). With regard to the TDIU issue, the Veteran is currently service connected for PTSD, evaluated as 50 percent disabling; right lower extremity radiculopathy, evaluated as 40 percent disabling; recurrent lumbar strain, evaluated as 20 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; coronary artery disease, evaluated as 10 percent disabling; and left ear hearing, assigned a noncompensable rating. A combined disability evaluation of 90 percent is in effect. Thus, the Veteran currently meets the threshold criteria for entitlement to TDIU under 38 C.F.R. § 4.16. The Veteran's claim for TDIU was denied in August 2013 because the Veteran indicated that he was still working at that time. At his October 2017 hearing, the Veteran testified that he was no longer working. See Hearing transcript, pp. 24-25. Given the conflicting evidence regarding whether the Veteran is currently working, the Board finds that a remand is necessary in order to request that the Veteran provided an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) that includes details regarding his employment history. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete and return an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). He should be specifically requested to provide details regarding his employment history, to include the nature of his most recent employment and termination date, if applicable. 2. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic file. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 3. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his service-connected PTSD. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran and his representative of such and provide him with an opportunity to submit those records directly. 4. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the impact his service-connected disabilities have on his employability. He should be provided the appropriate amount of time to submit this lay evidence. 5. Schedule the Veteran for a VA examination with the appropriate specialist for the purpose of ascertaining the current nature and severity of his service-connected PTSD, to include any functional effects. Due to the underlying stressors that are the cause of the Veteran's PTSD, the examination must be conducted by a female examiner. The Veteran's electronic file should be made available to and be reviewed by the examiner, and she must indicate whether such review was accomplished. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 6. After completing the above, and any additional development that may be indicated by any response received in response to the above actions, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case and, after allowing the appropriate period of time for response, return the case to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).