Citation Nr: 1821132 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-27 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD) prior to August 4, 2014. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected PTSD prior to August 4, 2014. REPRESENTATION Veteran represented by: Brett Buchanan, Agent ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had honorable active duty service in the United States Army from July 1968 to March 1971. Among other commendations, the Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which continued the 10 percent evaluation for the service-connected PTSD disability. The Veteran appealed the underlying decision in a Notice of Disagreement received in August 2012. In a September 2015 decision, the AOJ increased the evaluation for PTSD from 10 to 70 percent, effective August 4, 2014, and granted entitlement to TDIU, effective August 4, 2014. The record demonstrates that the Veteran raised an informal claim of entitlement to TDIU benefits due to his service-connected PTSD prior to August 4, 2014. The issue of whether entitlement to TDIU benefits is warranted as a result of that disability is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. Additionally, the Veteran and his representative clearly limited his appeal for an increased evaluation for PTSD and TDIU to the period prior to August 4, 2014, and as such, the Board will limit its consideration accordingly. The Board acknowledges the December 2012 rating decision that assigns a temporary 100 percent evaluation for PTSD effective October 4, 2011, and a 10 percent evaluation assigned from December 1, 2011, as well as the rating decision dated in May 2014 that assigns a temporary 100 percent evaluation for PTSD effective June 2, 2013, and a 10 percent evaluation assigned from August 1, 2013. These 100 percent temporary ratings are not on appeal and will not be addressed by the Board. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's representative asserts that the March 2011 and June 2012 examinations for PTSD were inadequate. Specifically, the March 2011 examiner did not review the record, and found the Veteran's PTSD symptoms to be transient. Similarly, the June 2012 examiner also failed to review the record, and determined that the Veteran did not have a mental health disability, but found that he was not competent to handle funds. The Board, however, notes that the Veteran has reported symptoms such as an inability to work, sleep impairment, depression, anxiety, difficulty managing anger, and impaired impulse control. Moreover, private treatment records dated in January 2012 through June 2014 demonstrate the Veteran's anger management problems, as well as difficulty getting along with his second wife, son, and co-workers. Additionally, the evidence shows that the Veteran has been hospitalized at a VA facility for a mental health disability at various times during the period on appeal, which also suggests impairment from his PTSD. Further, Social Security Administration (SSA) records show the Veteran became disabled in October 2010 for anxiety related disorders and an affective mood disorder. Therefore, a retrospective medical opinion is needed to determine the accurate presentation of the Veteran's PTSD symptoms prior to August 4, 2014. As the issue of an evaluation for PTSD may be directly applicable to the question of employability, the issue of TDIU is also remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain a medical opinion from an appropriate VA examiner to determine the level of impairment of the Veteran's service-connected PTSD disability prior to August 4, 2014. The examiner should also determine if the Veteran's service-connected PTSD disability precluded him from securing or maintaining any form of substantially gainful employment consistent with his education and occupational background prior to August 4, 2014. The examiner should review the entire claims file, including lay statements of symptoms and severity of impairment, VA and private treatment records, SSA records and determinations, and VA examination reports. The examiner should specifically address the following: a. Does the evidence of record show that the Veteran's PTSD disability underwent an increase in severity for the period prior to August 4, 2014, such that an increase from 10 percent to 70 percent is appropriate? Please explain. b. In rendering the opinion, address the Veteran's and his wife's reports of symptoms, such as the inability to work, sleep impairment, depression, anxiety, difficulty managing anger, and impaired impulse control; private treatment records demonstrating difficulty getting along with his second wife, son, and co-workers, and anger management problems; evidence of hospitalization and prescribed medication for depression and other mental health symptoms. Explain if these symptoms are consistent or inconsistent with the Veteran's disability presentation. c. The examiner should fully describe the functional effects of each of the Veteran's service-connected psychiatric disorders, to include PTSD, on his activities of daily living, to include employment for the period prior to August 4, 2014. In particular, the examiner should describe what types of employment activities would be limited because of the service-connected PTSD, what types of employment would not be limited (if any), and whether any limitation on employment are likely to be permanent. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence, and all lay statements. In doing so, the examiner must consider and discuss the impact/significance of associated medications (if any), as well as the Veteran's education and workplace skills, but not the Veteran's age or distinguishable impairment from nonservice-connected disorder(s), on his occupational status. The examiner should consider all relevant evidence of record and provide comprehensive rationale for any opinion proffered. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 3. The AOJ should also undertake any additional development deemed necessary. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999 This REMAND 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). _________________________________________________ B. MULLINS 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).