Citation Nr: 1308313 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 04-14 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to January 28, 2003, for the award of service connection for PTSD. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from September 1967 to March 1969, including a tour of duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2012, the Board issued a decision which remanded the Veteran's claims of service connection for hearing loss and tinnitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2012, the Court issued an Order setting aside the Board's remand insofar as it indicated that the Veteran did not appeal the rating or effective date assigned to the service-connected psychiatric disability in the September 2011 rating decision. The matters listed on the title page were remanded for compliance with the instructions within a Joint Motion between the Parties (joint motion). The case has been returned to the Board for action consistent with the joint motion. In September 2010 a Board videoconference hearing was held before the undersigned Veterans Law Judge. The transcript of that hearing is of record. The Court's order did not disturb the Board's remand of the issues pertaining to entitlement to service connection for hearing loss and tinnitus. These matters were remanded by the Board in February 2012, and remain pending at the RO. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The parties to the April 2012 joint motion agreed that the Board failed to note a timely notice of disagreement (NOD) with a September 2011 rating decision granting service connection for PTSD and assigning a 50 percent rating for that disability effective from January 28, 2003, which was also noted to encompass a claim for TDIU. The parties agreed that the claims should be remanded by the Board to the originating agency so that it may address the issues of an initial evaluation for PTSD in excess of 50 percent, an earlier effective date for the award of service connection for PTSD and TDIU in the first instance. The parties agreed that, following the award of service connection for PTSD in the September 2011 rating decision, the Veteran submitted a timely NOD with respect to each of these issues. No statement of the case (SOC) has been issued as to these claims. In November 2012 argument before the Board, the Veteran's attorney urges, consistent with the joint motion, that the case be remanded to the originating agency for the issuance of a SOC on these issues. He observes that a NOD was filed with the RO with respect to these issues on December 13, 2011. The failure to issue an SOC in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2011); see also Manlincon, supra; Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of remanding these issues is to give the RO an opportunity to cure this defect. Thereafter, the RO should return the claims file to the Board only if the Veteran perfects an appeal to either of these issues in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 (substantive appeal), the Board is not required, and in fact, has no authority, to decide the claim). Accordingly, the case is REMANDED for the following action: 1. The RO should issue a statement of the case (SOC) to the appellant and his representative on the issues set forth on the title page of this decision. He should also be informed of the requirements to perfect an appeal with respect to these issues. 2. If the Veteran perfects an appeal with respect to this matter, the RO should ensure that any indicated development is completed before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome of this case. The Veteran need take no action until he is otherwise notified but he has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. S. TOTH 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).