Citation Nr: 1304148	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  09-25 226	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to January 9, 2012, and as 50 percent disabling thereafter.

2.  Entitlement to a total disability rating based upon individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to January 1968. 

This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD and a TDIU.  In May 2009, the RO granted service connection for PTSD and assigned a 30 percent disability.  The Veteran filed a timely notice of disagreement to that decision.  In February 2012, the RO increased the rating for PTSD from 30 to 50 percent disabling, effective January 9, 2012.

In October 2012, the Veteran testified before the Board at a hearing via videoconference.  A copy of the transcript has been reviewed.

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

First, where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).  To date, a statement of the case has not yet been provided to the Veteran as to the issue of entitlement to an increased initial rating for PTSD.  Therefore, after conducting the development ordered herein, the RO should issue a statement of the case regarding the issue on appeal. 

On remand, the Veteran should also be given the opportunity to submit additional treatment records in support of his claim for TDIU.  In that regard, he stated at his hearing that he had received continuing psychiatric treatment at the VA, including in October 2012.  

With regard to the Veteran's claim of entitlement to TDIU, the Board finds that this claim is inextricably intertwined with the Veteran's pending claim for increased rating for PTSD, as the resolution of that claim might have bearing upon the Veteran's claim for TDIU.  Specifically, newer treatment records or other development obtained on remand may impact the Veteran's disability rating, which currently does not meet the criteria for consideration of TDIU on a schedular basis.  The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran identify any outstanding treatment records relevant to his claim for increased rating and claim for TDIU.  After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records.  All reasonable attempts should be made to obtain such records.  

2.  After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to an increased rating for PTSD and for a TDIU should be readjudicated.  If the claims remain denied, a statement of the case (PTSD) and supplemental statement of the case (TDIU) should be provided to the Veteran and his representative.  The Veteran should be informed of the requirements to perfect an appeal as to the increased rating for PTSD.  If a substantive appeal is timely filed, the claim for increased rating should be certified to the Board.   

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. 2012).



_________________________________________________
M. E. LARKIN
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) (2012).