Citation Nr: 1307971 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-26 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with panic attacks prior to October 23, 2008. 2. Entitlement to an initial rating in excess of 70 percent for PTSD with panic attacks and a cognitive disorder due to traumatic brain injury (TBI) since October 23, 2008. REPRESENTATION Veteran represented by: Swords to Plowshares, Veterans Rights Organization, Inc. ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active military service from March 1997 to October 1999 and from January 2004 to October 2005. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In the August 2008 rating decision on appeal, the RO granted service connection for PTSD with panic attacks, and assigned an initial disability rating of 50 percent, effective November 28, 2007, pursuant to Diagnostic Code (DC) 9411. The RO also granted service connection for residuals of TBI, and assigned an initial disability rating of 10 percent, effective November 28, 2007, pursuant to DC 8045-9304. Thereafter, the Veteran filed a notice of disagreement in August 2009 as to only the initial 50 percent rating assigned for PTSD, and timely perfected his appeal of such issue to the Board in June 2010. In an August 2011 rating decision, the RO increased the Veteran's disability rating to 40 percent for his TBI, now manifested by cognitive impairment, effective October 23, 2008, pursuant to revised DC 8045. The Veteran did not appeal such decision. In a September 2011 rating decision, the RO assigned a 70 percent disability rating, effective from October 23, 2008, for PTSD with panic attacks and a cognitive disorder due to TBI, pursuant to DC 8045-9411. The rating decision and accompanying supplemental statement of the case indicated the combined rating, now encompassing his PTSD and TBI as one disability, was more advantageous to the Veteran as, when combined with his other service-connected disabilities, resulted in an award of special monthly compensation, effective September 29, 2010. In this regard, the RO noted that the Veteran's PTSD and TBI were a single disability upon which his TDIU rating was based, and he had additional service-connected physical disabilities that were independently ratable at 60 percent or more, effective September 29, 2010. Therefore, the issues before the Board have been characterized as shown on the first page of this decision so as to most accurately reflect the procedural history. The Board further observes that, in the September 2011 rating decision, which combined the Veteran's PTSD and TBI as a single disability as of October 23, 2008, the code sheet fails to reflect that his service-connected residuals of a TBI had been separately rated at 10 percent pursuant to DC 8045-9304 from November 28, 2007 to October 22, 2008. Therefore, this matter is referred to the agency of original jurisdiction (AOJ) for appropriate action. The Board also observes that the Veteran perfected an appeal as to the issue of entitlement to a total disability rating based on individual unemployability (TDIU). However, in an August 2011 rating decision, such was granted, effective November 28, 2007. As such is a full grant of the benefit sought on appeal and is in effective from the date of service connection for PTSD, the issue of entitlement to a TDIU is not properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that, on his June 2010 Appeal to Board of Veterans' Appeals (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge of the Board. In March 2012, he was notified that his hearing was scheduled for May 2012. Thereafter, also in March 2012, the Veteran requested that his hearing be rescheduled. As such, a May 2012 letter advised him that his hearing was scheduled for June 2012. However, he failed to appear for his June 2012 Board hearing. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of such file reveals that it is duplicative of the evidence contained in the paper claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board sincerely regrets any delay an additional remand of the claims may cause. However, a remand is needed to ensure that the Veteran is afforded procedural due process and ensure that there is a complete record upon which to decide the claims so he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board notes that the Veteran was most recently evaluated for his TBI and PTSD in May 2011 and August 2011. In this regard, the May 2011 VA examiner specifically determined that the Veteran suffers from PTSD and cognitive disorder, caused by TBI. The examiner stated that emotional/ behavioral signs and symptoms that are part of the PTSD include a bigger proportion of anxiety and mood and irritabilities reactions. On the other hand, the symptoms that are most likely associated with his TBI are the cognitive symptoms. The examiner stated it was possible to make this determination without resort to mere speculation. In providing an opinion on these two disabilities, the May 2011 VA examiner stated the Veteran suffers some mental effects of TBI, resulting in occupational and social impairment with signs and symptoms that produce occasional decrease in work efficiency, or there are intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but generally satisfactory functioning. The examiner further stated that this rating would be separate from the rating already given by previous examiners for PTSD. In August 2011, the same examiner was asked to provide a single assessment based on combined effects of both the cognitive disorder due to TBI and the previously diagnosed PTSD, presumably for TDIU purposes. The examiner stated that the Veteran's disorders result in occupational and social impairment with deficiencies in most areas. No additional rationale was provided. Therefore, the Board finds that a contemporaneous examination is warranted so as to determine the current nature and severity of his TBI, with cognitive disorder, and PTSD disabilities, both separately (if possible) and together, to determine the most favorable rating for his service-connected disability(ies). See Snuffer v. Gober, 10 Vet.App. 400 (1997); Caffrey v. Brown, 6 Vet.App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, while on remand, the AOJ should obtain any outstanding VA treatment records dated from August 2011 to the present. In this regard, it appears that the Veteran most recently received treatment from Missoula Clinic, which falls under the umbrella of the Ft. Harrison, Montana VA Medical Center as well as the San Francisco, California, VA Medical Center. The Veteran indicated that he was subsequently moving to Oakland, California. In this regard, the Board observes that the Oakland VA Outpatient Clinic falls under the umbrella of the VA Northern California Healthcare System. Therefore, records dated from August 2011 to the present should be obtained from any appropriate VA facility, to include the Ft. Harrison and San Francisco facilities as well as the VA Northern California Healthcare System. Finally, the AOJ should readjudicated the Veteran's claims and, in so doing, consider whether it is more favorable to him to have his PTSD and TBI disabilities rated as a single disability as of October 23, 2008, or have them evaluated separately. In considering such, the AOJ should be mindful that the Veteran's award of special monthly compensation is based, in part, on the fact that his PTSD and TBI were a single disability upon which his TDIU rating was based, and he had additional service-connected physical disabilities that were independently ratable at 60 percent or more. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's VA treatment records from the Ft. Harrison and San Francisco VA facilities as well as the VA Northern California Healthcare System dated from August 2011 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran should afforded an appropriate VA examination so as to determine the current nature and severity of his PTSD and TBI disability(ies). The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The following should be addressed: (a) The examiner must first determine whether the symptoms associated with the Veteran's PTSD are separate and distinct from those associated with his TBI with cognitive disorder. (b) If so, then provide two separate examinations to assess the nature and severity of the Veteran's PTSD and TBI with cognitive disorder. In this regard, the examiner should specifically indicate the symptomatology associated with each disorder (and exclusive from the other disorder). (c) If not, then the examiner should conduct a TBI examination for the purpose of identifying the nature and severity of all residuals of the Veteran's TBI, to include his PTSD. The rationale for all opinions expressed should be provided in a report. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. In doing so, the AOJ should consider whether it is more favorable to him to have his PTSD and TBI disabilities rated as a single disability as of October 23, 2008, or have them evaluated separately. In considering such, the AOJ should be mindful that the Veteran's award of special monthly compensation is based, in part, on the fact that his PTSD and TBI were a single disability upon which his TDIU rating was based, and he had additional service-connected physical disabilities that were independently ratable at 60 percent or more. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).