Citation Nr: 1324006 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-44 775 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD), exclusive of a period when a temporary total rating was assigned beginning on September 8, 2010 to November 30, 2010. 2. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the RO in Roanoke, Virginia. Jurisdiction over the Veteran's appeal has since been transferred to the RO in St. Petersburg, Florida. In the August 2008 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating. The Veteran perfected an appeal as to a disagreement with that rating. In March 2011, the RO granted the Veteran's separate appeal for a temporary total disability rating based on hospitalization for the service-connected PTSD. The Veteran did not initiate any appeal relative to this claim, and it is not before the Board. In February 2013, the Veteran testified at hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. A review of the Veteran's Virtual VA claims file shows that it contains some relevant evidence not also associated with the paper claims file. That evidence was reviewed by the RO prior to its last adjudication and by the Board prior to this remand. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND During his February 2013 hearing, the Veteran endorsed symptomatology associated with the service-connected PTSD that he has not previously reported, which suggests that his disability may have worsened since he was last examined in May 2011. The duty to assist includes the duty to provide the Veteran with a contemporaneous examination for his rating claim. This must be accomplished on remand. In addition, the Veteran testified in February 2013 that he was in receipt of disability benefits from the Social Security Administration (SSA) that were based upon his having psychiatric disability. As these are records in the possession of the federal government, efforts should be made to obtain them. Also in February 2013, the Veteran indicated that he continued to receive ongoing treatment at VA in Jacksonville, Florida. The most recent records that are contained in the claims file are dated in May 2012. Any more recent records should be obtained. Finally, the Veteran has stated on numerous occasions that he is unable to work due to his PTSD. The Board finds that he has raised a claim for a TDIU rating, which is considered a component of his increased rating claim. However, this claim has not yet been developed or adjudicated by the RO, and this must be accomplished before the Board may act on it. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to obtain the copies of all clinical records from VA in Jacksonville, Florida referable to mental health treatment rendered the Veteran since May 2012. 2. The RO should take all indicated action to obtain copies of any outstanding records and the award letter referable to the Veteran's claim for SSA disability benefits, as well as copies of the medical records considered in conjunction with that determination. If no such files exist, the negative response from SSA should be associated with the claims file. 3. The RO should take all indicated steps to inform the Veteran of the elements to substantiate a claim for a TDIU rating that comply with the notification requirements of VCAA and afford him a full opportunity to supplement the record as required. The RO should conduct any additional development of this claim in accordance with 38 C.F.R. § 3.159. 4. After obtaining any records, the RO should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected PTSD. The examiner should report detailed clinical findings and identify all symptoms and any functional impairment due to the service-connected PTSD. Any opinion expressed by the examiner should be accompanied by a rationale. 5. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. The RO also should undertake to adjudicate the claim for a TDIU rating, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).