Citation Nr: 1821130 Decision Date: 04/09/18 Archive Date: 04/19/18 DOCKET NO. 14-31 089A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to higher initial evaluations for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling, prior to January 12, 2009, and as 50 percent disabling from that date. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1968 to January 31, 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A January 2008 rating decision granted service connection for PTSD and assigned an evaluation of 30 percent. The Veteran filed a notice of disagreement with respect to the evaluation of PTSD, placing that issue in appellate status. A May 2009 rating decision increased the evaluation of PTSD to 50 percent, effective January 12, 2009. An August 2012 rating decision denied a TDIU. The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in December 2017. A transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks higher evaluations for his PTSD, and asserts that his service-connected disabilities, collectively, render him unemployable. In addition to PTSD, currently evaluated as 50 percent disabling, the Veteran is currently in receipt of VA disability compensation for bilateral cataracts and diabetic retinopathy and macular degeneration, evaluated as 60 percent disabling; diabetes mellitus, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; bilateral hearing loss disability, evaluated as 10 percent disabling; and chronic renal failure, evaluated as noncompensably disabling. His current combined evaluation for compensation is 90 percent. During his 2017 hearing, the Veteran testified that his PTSD had become worse. His representative pointed out that the Veteran had not received an examination for this disability since 2011. In light of the Veteran's testimony regarding worsening of his PTSD and that fact that he has not been examined in approximately seven years, the Board concludes that a current examination is warranted to determine the severity and manifestations of the Veteran's PTSD. The Board also notes that while other examinations of record briefly discuss the impact of the Veteran's service-connected disabilities on employment, they do not adequately address his vocational history to include his educational background and previous work experience, nor do they provide a sufficient description of the impact of the service-connected disabilities on the Veteran's ability to perform work or work-like activities. Thus, on remand, opinions should be sought from appropriately qualified clinicians regarding these questions. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity and manifestations of his service-connected PTSD. The claims file must be reviewed by the examiner in conjunction with the examination and such review should be noted in the examination report. The examiner must elicit from the Veteran his complete history regarding his level of education, any special training, and previous work experience. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should identify all appropriate diagnoses of acquired psychiatric disorders. If any diagnosis other than PTSD is indicated, the examiner should specify whether the symptoms of PTSD are distinguishable from any other diagnosed acquired psychiatric disorder. For TDIU purposes, the following is requested. (a) The examiner should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner should ask the Veteran to describe in his own words the functional impact of his PTSD on his ability to perform work and work-like tasks. The Veteran's response should be recorded in the report. (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, the examiner should indicate the objective functional effects of the Veteran's service-connected PTSD on his ability to perform the physical and mental acts required for employment. (i) With regard to mental acts, the examiner should address functions of the mind to include concentration, focus, attention, and memory. The examiner should indicate whether the Veteran displays objective signs of sleep impairment and, if so, whether this is due to the service-connected PTSD. (ii) The examiner should indicate the effect, if any, of the Veteran's medications and/or treatment for PTSD on his ability to perform the physical and mental acts required for employment. (iii) The examiner should indicate whether the Veteran has had any medical restrictions imposed on his activities due to the service-connected PTSD. The examiner should refrain from commenting on whether the Veteran is employable. The examiner must explain the rationale for any opinion expressed. 2. The Veteran should be scheduled for VA examination(s) of his service-connected eye disability, diabetes mellitus, bilateral hearing loss disability and tinnitus, and renal failure to address the functional impact of these disabilities for the purpose of evaluating entitlement to a TDIU. The claims file must be reviewed and the review noted in the report(s). Complete examinations should be conducted using the appropriate disability benefits questionnaires. Each examiner must elicit from the Veteran his complete history regarding his level of education, any special training, and previous work experience. For TDIU purposes, the following is requested. (a) The examiner(s) should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner(s) should ask the Veteran to describe in his own words the functional impact of the service-connected disability on his ability to perform work and work-like tasks. The Veteran's response should be recorded in the report(s). (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, the examiner(s) should indicate the objective functional effects of the Veteran's service-connected disabilities on his ability to perform the physical and mental acts required for employment. (i) With regard to physical acts, the examiner(s) should address functions of the upper and lower extremities to include the ability to sit, stand, walk, bend, carry, lift, grasp, pull and push. The examiner(s) should indicate whether the Veteran can lift, carry, push, or pull objects weighing up to 10 pounds and, if not, why. Please, do not state generically that the Veteran has "difficulty with prolonged standing, sitting, and walking," but rather provide specific details, as appropriate, that identify the frequency, duration, and/or severity of any limitation arising from the service-connected disorders. (ii) With regard to mental acts, the examiner(s) should address functions of the mind to include concentration, focus, attention, and memory. The examiner(s) should indicate whether the Veteran displays objective signs of sleep impairment and, if so, whether this is due to any service-connected disability. (iii) The examiner(s) should indicate the effect, if any, of the Veteran's medications and/or treatment for the service-connected disabilities on his ability to perform the physical and mental acts required for employment. (iv) The examiner(s) should indicate whether the Veteran has had any medical restrictions imposed on his activities due to the service-connected disability. The examiner(s) should refrain from commenting on whether the Veteran is employable. The examiner(s) must explain the rationale for any opinion expressed. 3. Thereafter, review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand; if not, the AOJ should implement corrective procedures. 4. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto. The Veteran 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). The claims 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 2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).