Citation Nr: 0812158 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-30 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased rating for residuals of a fracture of the left femur, with involvement of the hip and knee, currently evaluated as 30 percent disabling. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Georgianne F. Bolinger, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran served on active duty from May 1981 to February 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2003 and June 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. By rating action dated in May 2003, the RO denied the veteran's claim for an increased rating for the residuals of a fracture of the left femur and entitlement to a TDIU. The June 2004 rating decision granted service connection for PTSD, and assigned a 30 percent evaluation, effective August 13, 2003. In April 2005 the veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. The Board issued a decision in October 2005 that denied an initial evaluation in excess of 30 percent for PTSD, denied an increased rating for residuals of a fracture of the left femur with knee and hip involvement, and denied entitlement to a TDIU. The veteran appealed the October 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). By an Order dated April 12, 2007, the Court granted a Joint Motion to remand this appeal to the Board. This Order served to vacate the October 26, 2005 Board decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The Joint Motion (pages 1-2) stated as follows: The parties agree that the Board committed administrative error and that remand is required because 1) the Board's statement of reasons or bases for its conclusion as to the [veteran's] PTSD claim is insufficient insofar as it did not discuss lay statements that describe observed symptoms, 2) the Board relied on a PTSD examination report that does not appear to have considered all of the evidence [lay statements] regarding Appellant's symptomatology, 3) the Board relied on an examination report relating to the residuals of a fracture of the left femur that did not sufficiently explain any disability resulting from Appellant's asserted muscle wasting, and 4) the claim as to TDIU must be remanded as it is inextricably intertwined with Appellant's claims that require remand. The Board notes that the Joint Motion's discussion of lay statements was referencing statements made by the veteran and his mother, daughter, and spouse. Accordingly, the case is hereby REMANDED for the following actions: 1. Issue a corrective VCAA notice letter with regard to the increased rating claims, in accordance with Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), as well the inextricably intertwined TDIU issue, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2003), Quartuccio v. Principi, 16 Vet. App. 183 (2002), and any other applicable legal precedent. Specifically, the appellant and his representative should be informed of all information and evidence needed to substantiate and complete each claim, which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain. VA must also request that the claimant provide any evidence in his possession that pertains to the claims. The appellant should be specifically apprised of the rating criteria for consideration as to each service-connected disability at issue. 2. The veteran should be afforded a VA examination to determine the nature and severity of his service-connected PTSD. The claims file must be made available to the examiner for review in connection with the examination, and the examiner must specifically state that a review of the claims file has been undertaken. All indicated studies should be performed, and all findings reported in detail. The examiner should opine as to the impact of the PTSD on the veteran's ability to maintain substantially gainful employment. The examiner is asked to specifically note, and comment upon, as appropriate, statements made by the veteran and his mother, spouse and daughter, as submitted in March 2004, pertaining to the veteran's PTSD symptoms. 3. The veteran should be afforded a VA examination to determine the nature and severity of his service-connected residuals of a fracture of the left femur, with involvement of the hip and knee. The claims file must be made available to the examiner for review in connection with the examination, and the examiner must specifically state that a review of the claims file has been undertaken. All indicated studies should be performed, and all findings reported in detail. The examiner is requested to state whether the veteran has any muscle wasting in the relevant areas. The examiner is also requested to opine as to the impact of the residuals of the left femur fracture on his ability to maintain substantially gainful employment. The examiner is asked to specifically note, and comment upon, as appropriate, statements made by the veteran and his family, as submitted in April 2003, pertaining to the left femur fracture symptoms. 4. The AOJ should then readjudicate the issues of entitlement to an initial evaluation in excess of 30 percent for PTSD, entitlement to an increased rating for residuals of a fracture of the left femur, with involvement of the hip and knee, currently evaluated as 30 percent disabling, and entitlement to a TDIU. If any benefit sought is not granted to the veteran's satisfaction, a supplemental statement of the case should be issued, and the veteran and his representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. The appellant has 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 Supp. 2005). _________________________________________________ U. R. POWELL 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).