Citation Nr: 1320704 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-01 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) prior to August 12, 2008 and from November 1, 2008. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to September 1970. This matter come before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which continued the Veteran's 50 percent disability evaluation for PTSD, effective April 20, 2004, and denied his request for an increased rating. In December 2005, the Veteran requested the opportunity to testify at a personal hearing at the Cleveland RO, and in January 2006, was notified that a hearing had been scheduled for March 2006; however, he failed to report for that hearing. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2012). The Board has previously considered this appeal. In a June 2009 decision, the Board denied the Veteran's claim. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2009, while the case was pending before the Court, the VA Office of General Counsel and the Veteran's attorney filed a Joint Motion for Remand, requesting that the Court vacate the Board's June 2009 decision, and that it remand the case for further development and readjudication. In November 2009, the Court granted the parties' Joint Motion for Remand, vacated the Board's June 2009 decision, and remanded the case to the Board for compliance with directives that were specified in the Joint Motion for Remand. In an October 2008 rating decision, the Veteran was assigned a temporary evaluation of 100 percent because of hospitalization over 21 days for the service-connected PTSD effective from August 12, 2008 to October 31, 2008. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit throughout the course of the appeal, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above. In April 2010 and June 2012, the Board remanded the Veteran's PTSD claim. 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 The Board remanded the claim in June 2012 for additional development to include a VA examination. However, as there has been no additional development added to either the paper or electronic claims files, to include a requested examination report or failure to appear findings, the Board must remand the case again for development as requested in the June 2012 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In the June 2012 remand, the Board observed that the Veteran's attorney indicated in a statement dated in April 2010 that the Veteran's PTSD symptoms affect the Veteran's ability to secure employment. The Board found that the issue of a total disability rating for compensation based on individual unemployability (TDIU) has arguably been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The U.S. Court of Appeals for Veterans Claims recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. Accordingly, the matter should be remanded to the RO for adjudication of whether referral of the Veteran's claim for consideration of TDIU on an extraschedular basis is warranted, in accordance with the holding in Rice. The claim of entitlement to an increased disability rating for service-connected PTSD is inextricably intertwined with the claim of entitlement to TDIU. In other words, development of the Veteran's claim for entitlement to TDIU may impact his increased disability rating claim as occupational impairment is included in the rating criteria for PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Prior to arranging the examination described above, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should be asked to identify any private or VA treatment providers who have rendered treatment for his PTSD since May 2010. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. The Board notes that in a February 2012 letter, the Veteran's representative indicated that additional VA treatment records were missing from 2005 to 2006 at the Batavia VAMC. The Board finds that a request of the Batavia VAMC should be made for any treatment records pertaining to the Veteran's mental health. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a VCAA notice letter which satisfies all VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and any other applicable legal precedent. This notice letter should specifically apprise the Veteran of the evidence and information necessary to substantiate his claim for TDIU. Also, the RO should inform the Veteran of the division of responsibility between him and VA in producing or obtaining that evidence or information. The letter should include an explanation as to the information or evidence needed to establish a disability rating and an effective date in the event of award of the benefit sought, as outlined by the Court in Dingess/Hartman. 2. The RO should make efforts to obtain any outstanding treatment records identified by the Veteran to include any records from Batavia VAMC. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. The Veteran should be scheduled for an appropriate VA examination to determine whether his service-connected disability alone prevents him from securing and following substantially gainful occupation. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Thereafter, consideration of whether referral for TDIU on an extraschedular basis is warranted must be adjudicated by the RO. Additionally, the Veteran's claim of entitlement to an increased disability rating for service-connected PTSD should be readjudicated by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC) 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). _________________________________________________ MICHAEL LANE 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).