Citation Nr: 1007114 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 03-23 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent disabling for service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to June 1970. Service in Vietnam and award of the Air Medal and Bronze Star Medal are evidenced in the record. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim for service connection for TDIU benefits. The Veteran disagreed and perfected an appeal. In an October 2006 decision and remand, the Board remanded the TDIU claim because it was inextricably intertwined with a then pending claim for entitlement to service-connection for PTSD. In a June 2007 rating decision, the RO granted service connection for PTSD evaluated as 30 percent disabling effective December 9, 2004. In a November 2007 statement, the Veteran contended that he was entitled to a disability rating in excess of the assigned 30 percent disability rating. In a March 2008 remand, the Board remanded the TDIU claim for further evidentiary and procedural development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reasons for remand As noted in the Introduction, the Board remanded the Veteran's TDIU claim because it was inextricably intertwined with the issue of entitlement to service connection for PTSD. In a June 2007 rating decision, the RO granted service connection for PTSD and evaluated it as 30 percent disabling. In a November 2007 statement, the Veteran stated that he "still [had] an ongoing appeal with VARO Cleveland on the percentage assigned to my PTSD," contending that his PTSD disability had gotten worse and that his initial disability rating should be higher than 30 percent. The record reveals that the RO has not adjudicated a claim for an initial disability rating in excess of 30 percent for service- connected PTSD. In cases where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In construing the November 2007 statement, the Board is cognizant of the obligation of VA to liberally interpret all communications by or on behalf of claimants. See Douglas v. Derwinski, 2 Vet. App. 103, 109 (1992). Indeed, the Board observes that the Court has held that the Board is required to "consider all issues raised either by the claimant or by the evidence of record," and that the Board is required to construe a Veteran's claim in a liberal manner. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) and citations therein; see also 38 C.F.R. § 20.202 (2009). For those reasons, the Board finds that the Veteran's November 2007 statement operates as an NOD and preserved the issue of entitlement to an initial disability rating in excess of 30 percent for PTSD for the Veteran. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where an NOD is filed, but an SOC has not been issued, the Board must remand the claim so that an SOC may be issued. The Board observes that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2009). In this case, the Veteran is service-connected for a back disability evaluated as 40 percent disabling; PTSD and depression evaluated as 30 percent disabling; tinnitus evaluated as 10 percent disabling; and hearing loss evaluated as noncompensably disabling. The Veteran has a combined evaluation for compensation of 60 percent. Accordingly, at this point, the Veteran does not meet the criteria of § 4.16(a). In sum, there remains pending an initial disability rating claim that is inextricably intertwined with the pending TDIU issue on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other in the prescribed degree should not be subject to piecemeal decision-making or appellate litigation]. In this case, resolution of the TDIU claim is dependent upon resolution the issue of the initial disability rating claim. Accordingly, the case is REMANDED for the following action: 1. VBA should contact the Veteran in writing and request that he identify or provide medical treatment records pertaining to his service-connected disabilities. Any such records not already in evidence should be associated with the Veteran's VA claims folder. 2. After completion of the foregoing and any other development deemed necessary, VBA must adjudicate the Veteran's claim for an initial disability rating in excess of 30 percent disabling for service- connected PTSD, taking into consideration any additional evidence which has been added to the record. If appropriate, the VBA should also readjudicate the Veteran's claim for TDIU benefits. If the decision remains unfavorable to the Veteran, a supplemental statement of the case (SSOC) should be prepared. The Veteran and his service representative should be provided with the SSOC and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if it is otherwise in order. The appellant 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). 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. 2009). _________________________________________________ FRANK J. FLOWERS 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) (2009).