Citation Nr: 1311432 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-09 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a staged initial evaluation in excess of 70 percent for PTSD, from December 11, 2009. 2. Entitlement to total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a rating decision in October 2010, the RO granted a staged initial evaluation of 50 percent from September 27, 2007, through December 10, 2009, and a staged initial evaluation of 70 percent from December 11, 2009. The Court has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). Although the Veteran was awarded a higher initial rating of 70 percent starting in December 2009, he did not receive the maximum rating for the disability. Thus, the issue remained on appeal. In January 2011, the Board issued a decision which denied entitlement to higher staged initial evaluations. The Veteran appealed the Board decision to the U. S. Court of Appeals for Veterans Claims (Court). In an Order dated in March 2012, the Court granted a Joint Motion for Remand and vacated the Board's decision for compliance with the instructions in the Joint Motion. In September 2012, pursuant to the Court's Order and the Joint Motion for a Remand, the Board again denied entitlement to a staged initial evaluation in excess of 30 percent prior to September 27, 2007, and entitlement to a staged initial evaluation in excess of 50 percent from September 27, 2007 through December 10, 2009. The issue of entitlement to a staged initial evaluation in excess of 70 percent from December 11, 2009 was remanded by the Board in September 2012 to the RO to obtain updated VAMC records and to then consider the new evidence and readjudicate the Veteran's claim before appellate review by the Board. The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. 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 As noted above, in September 2012, the Board remanded the issue of entitlement to a staged initial evaluation in excess of 70 percent for PTSD, from December 11, 2009, for further development. The RO readjudicated the issue in a supplemental statement of the case in February 2013. In March 2013, VA received two notarized statements, one from the Veteran's son, C. P. N., indicating that the Veteran now has hallucinations where he sees people who are not really there. The son also indicated that the Veteran no longer cared for himself and that the son must do tasks such as shaving the Veteran and combing his hair. The other statement was from a family friend, A. J., who also attested to observing the Veteran seeing hallucinations and intermittingly failing to perform activities of daily living. Such statements have not been considered by the RO, and neither the Veteran nor his representative has waived RO consideration of that additional evidence. Additionally, the Board notes that the most recent mental health treatment notes of record, including dated July 19, 2012, reflect that the Veteran was able to interact with his attending psychiatrist to answer questions, and that the Veteran reported no hallucinations and was doing well in other areas such as having awareness of his self and problems, was cooperative and well kept. The Veteran was oriented to time, place, and person. The GAF was 55. As the record suggests a material change in the Veteran's disability, a reexamination under 38 C.F.R. § 3.327 is warranted. 38 U.S.C.A. § 5103A. The Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Since this matter must be remanded to determine the current level of severity of his service-connected PTSD, which the Veteran has claimed affects his employability, the Board finds that a claim for entitlement to TDIU is inextricably intertwined therewith. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). In this case, the Veteran has expressly raised the issue of entitlement to a TDIU, and such issue was remanded by the Board in December 2009 and January 2011. The record does not reflect that the RO has adjudicated entitlement to a TDIU. Thus, this case must also be remanded for adjudication of the issue of entitlement to a TDIU. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the name and address of all providers of treatment for his PTSD, private and VA, since December 11, 2009. Attempt to obtain all identified treatment reports, VA and private, not already of record. 2. Afford the Veteran a VA examination to determine the current level of severity for his PTSD. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. A complete rationale for all opinions must be provided. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his PTSD, including the frequency, duration, intensity, onset of any change in symptoms, and functional effects of symptoms such as, but not limited to, panic attacks. If feasible, the examiner should specifically include a GAF score due solely to the PTSD. All signs and symptoms of the Veteran's PTSD should be reported in detail, and the examiner should describe the impact of the Veteran's PTSD on his occupational and social functioning. 3. Complete any evidentiary development deemed necessary to adjudicate the issue of entitlement to a TDIU, to include scheduling a VA examination to obtain an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities, considered in combination, preclude substantially gainful employment consistent with his education and occupational experience. Rationale must be provided for the opinion proferred. 4. After the foregoing development is completed, readjudicate the issue of entitlement to a staged initial rating higher than 70 percent for PTSD, from December 11, 2009, and adjudicate the issue of entitlement to a TDIU. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).