Citation Nr: 21009460 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-18 058 DATE: February 22, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and anxiety disorder with adjustment disorder and depressed mood is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REFERRED The issue of entitlement to service connection for seizures, secondary to PTSD, has been raised by the record. See June 2020 Board of Veterans’ Appeals (Board hearing testimony. This matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. REASONS FOR REMAND The Veteran had active duty service from August 1985 to August 1989. This case is on appeal to the Board from a Department of Veterans Affairs (VA) AOJ rating decision dated in December 2017. The Veteran testified at a Board hearing in June 2020. A copy of the transcript has been associated with the record. The evidence suggests that the Veteran’s service-connected PTSD impacts his ability to work; therefore, the Board infers a TDIU claim as part of the Veteran’s claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Unfortunately, as explained below, the claim for a TDIU must be remanded to the AOJ, as well as the claim for an increased rating for PTSD. Although the Board sincerely regrets this additional delay, it is necessary to ensure that the Veteran is afforded adequate due process and every possible consideration. 1. Entitlement to an initial rating in excess of 50 percent for PTSD and anxiety disorder with adjustment disorder and depressed mood is remanded. The Veteran underwent a VA examination for his PTSD in December 2017. Since then, in June 2020, the Veteran testified that his symptoms were worse. As the record indicates a potential worsening of the Veteran’s psychiatric disability, a remand is necessary to assess the current severity of the Veteran’s service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, on remand, an examiner should clarify the Veteran’s diagnoses and which symptoms are attributable to his service-connected PTSD. First, the December 2017 VA examiner indicated that the Veteran did not have a diagnosed traumatic brain injury (TBI), but the Veteran submitted a private opinion written by a co-director of a brain injury fellowship at a university TBI Program. Second, the Veteran contends that some of his PTSD symptoms were improperly attributed to his seizures. Therefore, on remand, an examiner should clarify if the Veteran has a TBI, and if he has symptoms that overlap his seizure disorder and PTSD. On remand, the AOJ should attempt to obtain the private records from Spaulding Rehabilitation Hospital. The outstanding treatment records were not requested and are not otherwise of record, making a remand necessary. Finally, a remand is necessary for the AOJ to obtain records from the Social Security Administration (SSA). In his Board testimony, the Veteran indicated that he receives SSA benefits. 2. Entitlement to a TDIU is remanded. As noted above, the Board has inferred a TDIU claim; the Veteran has not submitted a formal claim for a TDIU, and there is no evidence of record regarding the Veteran’s income or wages. Therefore, on remand, the AOJ should request a completed TDIU detailing the Veteran’s work history. The Board notes that the Veteran does not meet the minimum disability rating percentage threshold for consideration of schedular TDIU. 38 C.F.R. § 4.16(a). Nevertheless, there is a question of the Veteran’s ability to secure and follow substantially gainful employment. For the entire appeal period, the Veteran has been unemployed. He is service-connected for PTSD. The Veteran testified that his PTSD impacted his ability to work. Since the evidence raises a question as to whether the Veteran is capable of substantially gainful employment, in spite of not meeting the schedular requirements for a TDIU for the appeal period, a remand is warranted. The Board is prohibited from awarding an extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Accordingly, on remand, the matter should be referred for consideration of extraschedular TDIU to the VA Director of the Compensation Service for all portions of the appeal period for which the Veteran does not meet the TDIU threshold disability percentages. The matters are REMANDED for the following action: 1. Request a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) including all employment information from the Veteran. Complete any development necessary regarding the claim of entitlement to a TDIU based on any responses provided by the Veteran or evidence submitted by the Veteran or his representative. 2. Ask the Veteran to complete releases authorizing VA to obtain his records from any private provider who has treated him for PTSD, to include Dr. S.D.H., Dr. Karamouz, and Spaulding Rehabilitation Hospital. If releases are completed, make reasonable efforts to obtain any identified private treatment records. If any requested records are not obtained, inform the Veteran. 3. Obtain from the SSA complete copies of all records pertaining to the Veteran's award of SSA benefits, including all medical evidence considered in making the decision, and a copy of the decision granting SSA benefits. All attempts to secure these records must be documented in the record. 4. After the above development has been completed, schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected PTSD. If an in-person examination cannot be conducted, an examination by other means should be afforded. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. Additionally, the examiner is requested, if possible, to delineate all symptoms associated with any identified nonservice-connected psychiatric disability. The examiner should provide a complete rationale for any expressed opinion. (a.) The examiner must clarify if the Veteran has a TBI, and if there are any PTSD symptoms he experiences that overlap with his seizures. 5. If the Veteran still does not meet the schedular criteria for any part of the appeal period after readjudication of his increased rating claim, refer the Veteran’s claim to the Director of VA’s Compensation and Pension Service for consideration of whether an extraschedular TDIU rating is appropriate. If a decision is made that referral is not warranted, it must be documented in the claims file. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.