Citation Nr: 1304601 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-35 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a postoperative cardiovascular disability, to include aortic aneurysm residuals. 2. Entitlement to an initial rating in excess of 50 percent for the service-connected post-traumatic stress disorder (PTSD) prior to March 31, 2011. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability prior to July 1, 2010. 4. Entitlement to special monthly compensation prior to March 31, 2011. REPRESENTATION Appellant represented by: Michael Miskowiec, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for PTSD and entitlement to compensation under 38 U.S.C.A. § 1151 for a postoperative cardiovascular disability, to include aortic aneurysm residuals. In December 1999, the Board denied the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a postoperative cardiovascular disability, to include aortic aneurysm residuals. The Veteran appealed the claim to the U.S. Court of Appeals for Veteran's Claims (Court). In March 2001, the Court vacated the Board's December 1999 decision and remanded the case to the Board for further appellate review. In May 2002, the Board denied the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a postoperative cardiovascular disability, to include aortic aneurysm residuals. The Secretary filed a motion for remand citing the Veterans Claims Assistance Act of 2000 and this matter was remanded by the Board to the RO in October 2003. In a May 2005 decision, the Board granted service connection for PTSD. The Board found that the December 1996 rating decision was not final as to the issue of service connection for PTSD and the appeal as to the issue of service connection for PTSD had remained pending since that time. A February 2006 rating decision implemented the grant of service connection for PTSD and assigned a 10 percent rating from August 18, 1998. A July 2008 rating decision assigned a 50 percent rating to the PTSD from April 5, 1996. The Veteran perfected an appeal of this issue. A March 2010 rating decision denied entitlement to a total rating based on individual unemployability due to service-connected disability. The Veteran perfected an appeal of this issue. In an October 2011 rating decision, the RO assigned a 100 percent rating to the service-connected PTSD from March 31, 2011. The RO granted entitlement to a total rating based on individual unemployability due to service-connected disability from July 1, 2010. Special monthly compensation was granted from March 31, 2011. The Veteran expressed disagreement with this decision and asserted that he was entitled to a 70 percent rating for the PTSD and entitlement to a total rating based on individual unemployability due to service-connected disability from April 5, 1996. He also argued that he was entitled to special monthly compensation from July 1, 2010. The Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in November 2012. A transcript of the hearing is associated with the Veteran's claims folder. At the hearing before the Board, the Veteran submitted additional evidence in support of his claims with a waiver of agency of original jurisdiction consideration pursuant to 38 C.F.R. § 20.1304. Therefore, the Board finds that the solicitation of a waiver and/or remand for the RO's initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). The claims file and virtual VA file do not contain a Statement of the Case regarding the special monthly compensation issue. Under these circumstances, a Statement of the Case should be issued. The Board is required to remand, rather than refer, the issue. See Manlincon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to a total rating based on individual unemployability due to service-connected disability, entitlement to an initial rating in excess of 50 percent for the service-connected PTSD prior to March 31, 2011, and entitlement to special monthly compensation prior to July 1, 2010 are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT On March 14, 2011, prior to the promulgation of a decision by the Board, a written statement was received from the Veteran indicating that he was withdrawing his appeal as to the claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a postoperative cardiovascular disability, to include aortic aneurysm residuals. CONCLUSION OF LAW The criteria for the withdrawal of the Substantive Appeal as to the claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a postoperative cardiovascular disability, to include aortic aneurysm residuals, are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.101 (2012). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. On March 14, 2011, prior to the promulgation of a decision by the Board, a written statement was received from the Veteran indicating that he was withdrawing his appeal as to the claim for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a postoperative cardiovascular disability, to include aortic aneurysm residuals. As the Veteran has withdrawn this issue, there is no allegation of error of fact or law remaining for appellate consideration at this time. The appeal is dismissed. ORDER The appeal is dismissed. REMAND Review of the record shows that the Veteran receives treatment for the service-connected PTSD and other psychiatric disorders at the Beckley VA medical facility. The March 2011 VA examination report indicates that the examiner noted that anxiety state disorder was diagnosed in 2002 at the Beckley VA medical facility. The examiner further noted that the Veteran was last evaluated for the PTSD in April 2008. VA treatment records dated in 1996, 1999, 2001, May 2010, and June 2010 are associated with the claims folder. However, VA records dated from 1997 to May 2010 and records dated since June 2010 are not associated with the claims folder or the virtual VA folder. It does not appear that a search was made for these records. The RO should obtain copies of all records of VA treatment for the service-connected PTSD dated from 1997 to May 2010 and from June 2010 to present from the VA healthcare system including from the Beckley VA Medical Center. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The RO should also appropriately contact the Veteran by letter and request that he provide sufficient information and, if necessary, authorization to enable the RO to obtain any copies of any outstanding non-VA treatment records referable to the service-connected PTSD and the claim for a total rating based upon individual unemployability due to service-connected disability. The RO should contact the Veteran by letter and request that he provide sufficient information and authorization to enable the RO to obtain any copies of mental health treatment records from Seneca Health Services and Dr. Lois Urick dated from 2009. The RO should make an attempt to obtain copies any treatment records from an treatment source identified by the Veteran. Regarding the claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), the Board notes that in a January 2011 rating decision, the RO granted service connection for coronary artery disease. A 30 percent rating was assigned from March 7, 1994; a 100 percent rating was assigned from March 10, 2010; and a 60 percent rating was assigned from July 1, 2010. Review of the record shows that the TDIU claim has not been readjudicated in light of the grant of service connection for coronary artery disease. The Board finds that due process mandates that this issue be remanded to the RO for readjudication in the first instance by the agency of original jurisdiction. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In an October 2011 rating decision, the RO granted entitlement to special monthly compensation from March 31, 2011. The Veteran expressed disagreement with this decision in a November 2011 VA Form 9 submitted with regard to the claims for increased rating for PTSD and TDUI and asserted that he was entitled to special monthly compensation from July 1, 2010. The claims file and virtual VA file do not contain a Statement of the Case regarding this issue. Under these circumstances, a Statement of the Case should be issued. The Board is required to remand, rather than refer, this issue. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all VA clinical records showing treatment of the service-connected PTSD from the VA healthcare system including from the Beckley VA medical center dated from 1997 to May 2010 and from June 2010 to present. 2. Contact the Veteran and ask him to identify all non-VA medical treatment rendered for the service-connected PTSD. Contact the Veteran by letter and request that he provide sufficient information and authorization to enable the RO to obtain any copies of treatment records from Seneca Health Services and Dr. Lois Urick dated from 2009. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any copies of any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. The letter should invite the Veteran to submit any medical evidence or treatment records in support of the claims. 3. Issue the Veteran and his representative a Statement of the Case on the issue of entitlement to special monthly compensation from July 1, 2010. Notice of the determination and the Veteran's appellate rights should be provided to the Veteran and his representative. Only if an appeal is completed as to this matter should the issue be returned to the Board for appellate consideration. 4. After completing all indicated development, readjudicate the claims remaining on appeal. Adjudicate the issue of TDIU, including, if necessary, pursuant to § 3.321(b)(1), referral of the TDIU claim to the VA Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran, and his representative and they should be afforded a reasonable opportunity for response. 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. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs