Citation Nr: 0811091 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 93-27 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased disability rating for service-connected post-traumatic stress disorder (PTSD), currently evaluated 50 percent disabling. 2. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and D.E. ATTORNEY FOR THE BOARD K. Morgan, Counsel INTRODUCTION The veteran served on active duty from November 1967 to June 1970 and from August 1976 to September 1978. This matter came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Procedural history In an October 1992 rating decision, the RO granted service connection for PTSD and assigned a 10 percent disability rating. The veteran appealed, arguing that a higher rating was warranted. In July 1993, the veteran testified at a hearing at the RO. In September 1995, the Board remanded the matter for additional development of the evidence. While the matter was in remand status, in October 1996, the veteran testified at another hearing at the RO. In an October 1996 rating decision, the RO increased the rating for the veteran's PTSD to 50 percent. Although an increased rating was granted, the issue of entitlement to an initial rating in excess of 50 percent for PTSD remained in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) [A decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal]. Also in the October 1996 rating decision, the RO denied TDIU. That claim was included in the appeal. In December 1996, the Board remanded both issues to the RO for additional evidentiary development. While the matter was in remand status, the veteran testified at a third hearing at the RO. In an April 2001 decision, the Board denied a rating in excess of 50 percent for PTSD and denied TDIU. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in January 2002, the veteran's attorney and a representative of VA's Office of General Counsel filed a joint motion for remand. In a January 2002 Order, the Court granted the motion, vacated that portion of the Board's April 2001 decision which denied a rating in excess of 50 percent for PTSD and denied TDIU, and remanded the matter further development and readjudication. In April 2003, the Board began to conduct additional evidentiary development under a then recently-enacted regulation, 38 C.F.R. § 19.9(a)(2)(ii) (2003). Prior to the completion of that development, however, in Disabled American Veterans v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit invalidated pertinent portions of the new regulation. As a result, in September 2003, the Board remanded the appeal to the RO for completion of the additional development. In April 2006 this case was remanded by the Board so that the veteran could be provided with additional notice as contemplated in Dingess v. Nicholson, 19 Vet. App. 473 (2006). This was accomplished, and in May 2007 the Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC) which continued to deny the veteran's claims. The matter was returned to the Board in August 2007. At that time ,a review of the record, and in particular new argument from the veteran's representative, indicated that another remand was required. In March 2008, the Board granted the veteran's motion to advance this appeal on its docket due to his advanced age. See 38 C.F.R. § 20.900(c) (2007). While the Board regrets further delay a review of the record, shows that the development specified in the August 2007 remand has not been completed. Therefore, an addition remand is required. The reasons for remand are discussed in more detail below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The September 2003 Board remand read in pertinent part that the AOJ should: Make arrangements with the appropriate VA medical facility for the veteran to be afforded the following separate examinations in the following order: a psychological evaluation and then a psychiatric examination . . . . Each examiner should discuss the current severity of the veteran's service-connected PTSD symptomatology, to include an opinion that separates, if possible, symptomatology due to the veteran's service-connected PTSD from symptomatology caused by other, non service- connected disabilities. . . . If the symptomatology due to the veteran's PTSD cannot be separated from non service-connected symptomatology, the examiner should so indicate. Each examiner should comment on the impact of the veteran's service-connected PTSD on his social and industrial adaptability. All conclusions should be explained in detail. Written reports of the examinations should be prepared. In written argument of the veteran's representative, it was asserted that the veteran had not received the examinations requested in the Board's September 2003 remand. A careful review of the record discloses that the veteran's representative is correct The veteran was afforded a VA psychological examination in February 2004. However, the veteran has never been provided with a VA psychiatric examination. Specifically, in February 2004 the matter was referred for review by a Ph.D. level psychologist, Dr. W.S. At the time of the Board's August 2007 remand, the matter was returned to that psychologist for clarification of his opinion. That has been accomplished. Thereafter, as indicated in the September 2003 and in the August 2007 remands the matter should have been referred to a psychiatrist, that is to say an M.D. with a specialty in psychiatry, for an opinion. Although VA psychological examination occurred and the additional information requested from the psychologist in the August 2007 remand has been obtained, the original remand instructions regarding an opinion from a psychiatrist still have not been carried out. The Court has held that AOJ compliance with a remand is not discretionary, and that if the AOJ fails to comply with the terms of a remand, another remand for corrective action is required. See Stegall v. West, 11 Vet. App. 268 (1998). Under the circumstances here presented, the Board has concluded that this case must be again remanded. Accordingly, the case is REMANDED for the following action: 1. VBA should provided the veteran with an evaluation by a VA psychiatrist. The claims folder should be available for review in conjunction with the examination. The psychiatric examiner should discuss the current severity of the veteran's service-connected PTSD symptomatology, to include an opinion that separates, if possible, symptomatology due to the veteran's service-connected PTSD from symptomatology caused by other, non service-connected disabilities. If the symptomatology due to the veteran's PTSD cannot be separated from nonservice- connected symptomatology, the examiner should so indicate. The psychiatric examiner should comment on the impact of the veteran's service-connected PTSD on his social and industrial adaptability. All conclusions should be explained in detail. A report of the examination should be prepared and associated with the veteran's VA claims folder. 2. Thereafter, after undertaking any additional evidentiary and/or procedural development which it deems to be necessary, VBA must readjudicate the issues on appeal. If the decision remains unfavorable to the veteran, a supplemental statement of the case (SSOC) should be prepared, and the veteran and his representative should be provided an appropriate period of time to respond. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).