Citation Nr: 1217273 Decision Date: 05/14/12 Archive Date: 05/24/12 DOCKET NO. 09-16 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to an initial evaluation in excess of 30 percent for an acquired psychiatric disorder, to include anxiety disorder, not otherwise specified (NOS), and adjustment disorder with mixed anxiety and depressed mood. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2011). The Veteran performed active military service from August 1943 to January 1946. This case arises to the Board of Veterans' Appeals (the Board) from an April 2008-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that granted service connection and a 30 percent rating for adjustment disorder with mixed anxiety and depressed mood. In April 2011, the Board remanded the case for development. In that Remand, the Board referred a claim for a total disability rating based on individual unemployability (hereinafter: TDIU) to the RO for appropriate action. No action has been accomplished, although the RO had denied a earlier TDIU claim in an unappealed May 2010 rating decision. The United States Court of Appeals for Veterans Claims (Court) determined that where a Veteran claims unemployability due to a disability for which an increased rating is sought, then the Board must consider TDIU, as it part of the underlying increased rating claim. Thus, the Board's jurisdiction over the increased rating claim is extended to the issue of entitlement to TDIU. To reflect its jurisdiction over this issue, the Board has added a TDIU claim to page 1. Further development is needed to properly adjudicate the TDIU claim. The April 2011 Board Remand decision mis-characterizes the issue on appeal as entitlement to a higher initial rating for an acquired psychiatric disorder, to include anxiety disorder, not otherwise specified (NOS), adjustment disorder with mixed anxiety and depressed mood, and post-traumatic stress disorder (PTSD). That characterization was clearly erroneous, as service connection for PTSD has not been established. The Board has re-characterized the issue on appeal to reflect the correct disability for which a greater initial rating is sought. While an initial rating for PTSD is not on appeal here, service connection for PTSD is on appeal. In an original claim for VA benefits, submitted in February 2007, the Veteran specifically requested service connection for PTSD. The appealed April 2008 rating decision granted service connection for two other acquired psychiatric disorders found by an examiner, but noted that the Veteran does not have PTSD. Although the RO did not list service connection for PTSD as a stand-alone issue, the effect of the rating decision amounts to a denial of the claim for service connection for PTSD. See Roberson v. Principi, 251 F.3d 1378, 1383-84 (2001) (where an RO renders a decision on a Veteran's claim for benefits but fails to address one of the claims, that decision is final as to all claims). Subsequent to the April 2008 rating decision, the Veteran submitted a timely notice of disagreement (hereinafter: NOD). In that NOD he specifically argued, "I AM NOT IN AGREEMENT WITH THE RATING DECISION REGARDING POST TRAUMATIC STRESS DISORDER...[emphasis in original]" He also expressed disagreement with the assigned 30 percent rating for psychiatric disorders. Thus, both the initial rating for service-connected psychiatric disorders and the denial of service connection for PTSD were placed on appeal by virtue of the NOD. Because an NOD has been filed with respect to service connection for PTSD, the Board must address it. Just as the Court's jurisdiction is dependent on a jurisdiction-conferring NOD, the Board's jurisdiction, too, derives from a claimant's NOD. See Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"); Garlejo v. Brown, 10 Vet. App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). When the Board has jurisdiction over a particular matter, that jurisdiction is "mandatory". In the Matter of Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997), vacated in part on other grounds sub nom. Cox v. West, 149 F.3d 1360, 1365 (Fed. Cir. 1998). No SOC has been issued addressing service connection for PTSD and it is not clear that the Veteran has withdrawn his NOD. In accordance with 38 C.F.R. §§ 19.9, 19.26, 19.29, 19.30 (2011), unless the matter has been resolved by a grant of benefits or the NOD is withdrawn by appellant or his representative, the agency must prepare an SOC. Thus, a remand is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); VAOPGCPREC 16-92. Entitlement to service connection for PTSD and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the appeal period, the service-connected psychiatric disability has been manifested by serious occupational and social impairment with deficiencies in family relations, judgment, thinking, and mood. 2. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. CONCLUSION OF LAW The criteria for an initial 70 percent schedular rating for an acquired psychiatric disorder, to include anxiety disorder, NOS, and adjustment disorder with mixed anxiety and depressed mood, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9440 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board previously remanded the case for development in April 2011. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. Duty to Notify VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, adequate notice was sent to the claimant in March 2007, prior to the initial unfavorable decision. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Here the veteran appealed the initial rating assignment as to the service-connected psychiatric disability at issue. In this regard, because the April 2008 rating decision granted the veteran's claim of entitlement to service connection for the service-connected psychiatric disability at issue, such claim is now substantiated. His filing of a notice of disagreement as to the April 2008 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the veteran's appeal as to the initial rating assignments triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under that diagnostic code. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected psychiatric disability at issue. Duty to Assist VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA outpatient treatment records. The claimant was afforded two VA medical examinations. As discussed further below, the examinations are adequate as they considered the Veteran's medical history and clinical evaluation of the Veteran, and provided findings relevant to the rating criteria. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2011). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The medical as well as industrial history is to be considered and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. § 4.10. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court more recently held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2011). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2011). Anxiety disorder, NOS, and adjustment disorder with mixed anxiety and depressed mood have been rated 30 percent disabling under Diagnostic Code 9440 for the entire appeal period. Under the rating criteria of Diagnostic Code 9440, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9440 (2011). In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court stated that the specified factors for each incremental rating were examples rather than requirements for a particular rating. The Court stated that the analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme. Consistent with the foregoing, the Court also found it appropriate for a rating specialist to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. The evidence overall strongly suggests that the criteria for a 70 percent schedular rating are more nearly approximated during the entire appeal period for an acquired psychiatric disorder, to include anxiety disorder, NOS, and adjustment disorder with mixed anxiety and depressed mood. As noted above, the 70 percent schedular criteria are met where there is a showing of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. In this case, occupational and social impairment were noted by various examiners. For example, a December 2008 examiner noted agoraphobia and generalized social phobia. The Veteran reportedly felt detached and estranged from others. Another December 2008 report notes irritability, outbursts of anger, and "decreased socialization." A June 2009 report notes that the Veteran feared going out. He felt safer in a hospital. To warrant a 70 percent schedular rating, the occupational and social impairment should be accompanied by deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Although the Veteran does not work or go to school, there are deficiencies in family relations, judgment, thinking, and mood. Already reported above are deficiencies in family relations due to irritability, outbursts of anger, and "decreased socialization." With respect to deficiencies in judgment, April, June, and October 2009 VA reports note only fair insight and judgment, while an August 2010 report notes "limited" insight and judgment. In contrast to the 2009-dated reports, a December 2008 VA mental health note reflects good judgment and insight and a May 2011 VA compensation examiner reported, "Do mental disorder signs and symptoms result in deficiencies in the following areas (judgment, thinking, family relations, work, mood or school)? No." Regardless of the recent report, the April, June, and October 2009 reports certainly do reflect deficiencies in judgment. The Board is reminded that the rating agency must assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of an examination. 38 C.F.R. § 4.126(a). With respect to deficiencies in thinking or mood, this has been reported. A November 2007 VA compensation examination report reflects that the Veteran's current mood was 3 on a 10-point scale, where 0 equals the worst one can feel. The only Axis I diagnosis from that examination is, "Adjustment disorder with mixed anxiety and depressed mood." This competent medical evidence leaves no doubt that there is a deficiency in the Veteran's mood. Deficiencies in mood are further verified in later reports. An April 2009 VA report notes mildly anxious mood and constricted affect. A June 2009 VA report mentions that mood is depressed, anxious, and upset at times. Affect was appropriate, but constricted. Constricted affect is also mentioned in December 30, 2008, and February 3, 2009-dated psychiatric progress notes. The latter report contains an Axis I diagnosis of mood disorder, NOS. An April 2009 report is similar to the February 2009 report. A June 2009 VA psychiatric progress note reflects a depressed mood and contains an Axis I diagnosis of depressive disorder, NOS. A June 2010 report notes an Axis I diagnosis of depression, NOS. In contrast, however, a December 2008 VA mental health note reflects that the Veteran's mood was euthymic and his affect was congruent with his mood. A May 2011 VA compensation examiner stated that the Veteran did not seem to have significant depression. Overall, though, the medical evidence shows deficiencies in the Veteran's mood. The 70 percent rating criteria reflect that the deficiencies in judgment, thinking, or mood must be due to symptoms such as suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, spatial disorientation; neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. From the above list, depression is frequently shown. Also, factors outside the stated rating criteria may be considered. Mauerhan, supra. The medical evidence reflects that there are deficiencies in judgment, thinking, or mood and that these may be due to near continous depression. As noted above, depression has been noted at various times throughout the appeal period and a June 2009 VA psychiatric progress note contains an Axis I diagnosis of depressive disorder, NOS. Thus, depression has been shown to be near-continuous thoughout the appeal period. Finally, the 70 percent rating criteria require that VA consider any other evidence of occupational and social impairment, although total occupational impairment is not a stated criterion. Id. Other evidence of occupational and social impairment is contained in the Veteran's Global Assessment of Funtioning (hereinafter: GAF) scores. The Veteran's GAF scores, although not part of the rating criteria, have ranged from 45 to 60 during the appeal period. While the two VA compensation examiners each offered a GAF score of 60, the Veteran's treating physicians have consistently assigned much lower scores. An October 2009 report contains a GAF score of 50 and an August 2010 report contains a GAF score of 45 [according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, GAF scores of 41 through 50 indicate serious symptoms, or serious difficulty in social, occupational, or school functioning, i.e., no friends, unable to keep a job. See 38 C.F.R. § 4.125 (2011)]. GAF scores in the low 50s were also assigned at various times [according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, GAF scores of 51 to 60 indicate moderate symptoms (flat affect and circumstantial speech, occassional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See 38 C.F.R. § 4.125 (2011)]. All of the medical evidence cited in this decision is persuasive, as it is based on accurate facts and supported by rationale where necessary. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The lay evidence is competent with regard to descriptions of symptoms of disease or disability or an injury. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In this case, the lay evidence presented by a Veteran is credible and ultimately competent, as it is supported by later medical evidence. Thus, the lay evidence must be accorded some weight in the matter. The lower GAF scores mentioned above more nearly approximate the 70 percent rating criteria. Resolving any remaining doubt on this question in favor of the Veteran, the Board finds that serious psychiatric symptoms are shown and that the criteria of a 70 percent rating are more nearly approximated. A 100 percent schedular rating is not warranted because total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, are not shown. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, supra. After considering all the evidence of record, the Board finds that the evidence favors the claim. The claim for an initial schedular 70 percent disability rating will therefore be granted. Extra-schedular Consideration The record raises the issue of entitlement to an extra-schedular rating. The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. In this case, the Board feels that the established rating criteria adequately describe the severity and symptoms of the psychiatric disability presented. Thus, extra-schedular consideration for an acquired psychiatric disorder, to include anxiety disorder, NOS, and adjustment disorder with mixed anxiety and depressed mood, is not warranted. ORDER An initial 70 percent schedular rating for an acquired psychiatric disorder, to include anxiety disorder, NOS, and adjustment disorder with mixed anxiety and depressed mood is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. REMAND This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested. Service Connection for PTSD In the introduction to this decision, the Board pointed out that although the Veteran had submitted a timely NOD with an April 2008 RO rating decision that impliedly denied service connection for PTSD, the RO had not issued an SOC. The Court has held that an unprocessed NOD should be remanded, rather than referred. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the RO or AMC should issue an SOC with respect to the denial of service connection for PTSD. The Veteran should be informed that, under 38 C.F.R. § 20.302 (2011), he has 60 days from the date of mailing of the SOC to file a substantive appeal or a request for an extension of time to do so. This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). TDIU The record raises the issue of entitlement to TDIU. TDIU may be assigned when the Veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2011). In the decision above, a 70 percent rating is assigned. Thus, the schedular criteria for an extra-schedular rating are met. The AMC had not had opportunity to consider the TDIU claim in light of the higher schedular rating assigned herein. Moreover, VA's duty to assist includes obtaining a medical opinion addressing the TDIU claim. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, there is a pending claim for service connection for PTSD before the AMC. Where there is a pending claim for service connection, consideration of the TDIU claim must be postponed until the service connection claim is resolved. In Harris v. Derwinski, 1 Vet. App. 180 (1991), and Hoyer v. Derwinski, 1 Vet. App. 208 (1991), the Court dismissed as premature appeals from BVA decisions which addressed only those issues which had been considered by the agency of original jurisdiction. In each case, the Court held that the Board's decision on the claim which had been appealed was not a final order subject to appeal because that claim was "inextricably intertwined" with another claim which was undecided and pending before VA. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should issue an SOC with respect to the denial of service connection for PTSD. The Veteran should be informed that, under 38 C.F.R. § 20.302 (2011), he has 60 days from the date of mailing of the SOC to file a substantive appeal or a request for an extension of time to do so. 2. The AMC should develop the TDIU claim as necessary. This includes offering the Veteran an appropriate examination to determine whether it is at least as likely as not (50 percent or greater possibility) that all service-connected disabilities would preclude obtaining and following a substantially gainful occupation. Following development and adjudication of the TDIU claim, if the benefit is not granted, the AMC should submit it to the Director, Compensation and Pension Service, for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (b). 3. Following the above, the AMC should review all the relevant evidence and re-adjudicate the claims. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2011). 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. 2011). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs