Citation Nr: 1318299 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-22 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an effective date prior to April 25, 2002, for a grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) for the period from November 15, 1994 to September 4, 2000. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to February 1970. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from April 2005 and May 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In the April 2005 rating decision, the RO granted entitlement to service connection for PTSD and assigned a 50 percent disability evaluation effective from September 5, 2000. The May 2006 rating decision increased the disability rating for PTSD to 70 percent from September 5, 2000, and granted entitlement to TDIU and assigned an effective date of April 1, 2005. The Veteran appealed the effective dates for the grant of service connection for PTSD and for TDIU, and the case was referred to the Board for appellate review. In September 2008, the Board issued a decision denying, in pertinent part, the Veteran's claims for earlier effective dates for the grant of service connection for PTSD and for TDIU. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a memorandum decision dated in January 2011, the Court vacated the Board's September 2008 decision with respect to those issues and remanded the case to the Board. In an August 2011 decision, the Board assigned an effective date of November 15, 1994, for the grant of service connection for PTSD and an effective date of April 25, 2002, for the grant of a TDIU. In a September 2011 rating decision, the RO implemented the Board's August 2011 decision and assigned a 30 percent initial rating for the Veteran's PTSD effective from November 15, 1994. The 70 percent rating in effect since September 5, 2000, was continued. In September 2012, within one year of the September 2011 rating decision, the Veteran's attorney filed a notice of disagreement with the initial 30 percent rating assigned for his PTSD. This matter will be addressed below. Meanwhile, the Veteran appealed the Board's August 2011 decision to the Court. In October 2012, pursuant to the parties' Joint Motion for Remand (Joint Motion), the Court issued an Order which vacated the portion of the August 2011 Board decision denying an effective date prior to April 25, 2002, for the grant of TDIU and remanded the matter to the Board for development consistent with the Joint Motion. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND With regard to the claim of entitlement to an initial rating in excess of 30 percent for PTSD, the record shows that the Veteran's attorney filed a timely notice of disagreement in September 2012, but the RO has not yet issued a statement of the case on this matter. The filing of a notice of disagreement places a claim in appellate status. Therefore, the failure to issue a statement of the case in such a circumstance renders a claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of the remand 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 his appeal 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). Moreover, a decision on the claim for a higher initial evaluation for PTSD for the period from November 15, 1994, to September 4, 2000, could affect the outcome of the Veteran's claim for an earlier effective date for TDIU; therefore, the claims are inextricably intertwined. For this reason, the issue of entitlement to a higher initial evaluation must be resolved prior to resolution of the claim for an effective date prior to April 25, 2002, for the grant of TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a statement of the case addressing the issue of entitlement to an initial rating in excess of 30 percent for PTSD for the period from November 15, 1994, to September 4, 2000. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. 2. Thereafter, the claim of entitlement to a TDIU should be reviewed by the RO. If the benefit sought is not granted, the Veteran and his attorney should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).