Citation Nr: 1325640 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-08072 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO denied the Veteran's claim for a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) and the claim for a TDIU. In July 2008, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. The Board notes that, while the Veteran was previously represented by the Military Order of the Purple Heart, in August 2008, before certification of the appeal to the Board, the Military Order of the Purple Heart revoked its power of attorney by way of a letter sent to the VA and the Veteran. As the Veteran has not obtained another representative, the Board continues to recognize the Veteran as proceeding pro se in this appeal. In May 2010, the Board granted a 70 percent rating for PTSD, and remanded the remaining claim for a TDIU to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action, the RO continued to deny the claim for a TDIU (as reflected in a September 2011 supplemental SOC (SSOC)), and returned the matter to the Board for further appellate consideration. In March 2012, the Board denied the claim for a TDIU. The Veteran appealed the March 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted the Appellee's Motion for Remand filed by representatives for VA, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the Appellee Motion. In October 2012, the Board remanded the claim for a TDIU to the RO, via the AMC, for further action consistent with the Appellee Motion. After accomplishing further action, the RO/AMC continued to deny the claim remaining on appeal (as reflected in a January 2013 supplemental SOC (SSOC)), and returned the matter to the Board for further consideration. In March 2013, the Board determined that the RO/AMC had not substantially complied with the directives of the October 2012 remand,. and again remanded the claim for a TDIU to the RO, via the AMC. Again, after accomplishing further action, the RO/AMC s continued to deny the claim (as reflected in a May 2013 SSOC), and has returned the claim on appeal to the Board for further consideration. For the reasons expressed below, the matter on appeal is, again, being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on the claim remaining on appeal. The Veteran has asserted that he is unable to work as a result of his service-connected disabilities. In this case, service connection is in effect for PTSD (rated as 70 percent disabling), fracture of the right ankle with lateral deviation of the foot and ankylosis (rated as 20 percent disabling), and residuals of third degree burns of the right hand, index and little fingers with small areas of the fourth and fifth digits (rated as noncompensable). As noted in the Introduction, in March 2013, the Board remanded this matter to the RO/AMC for additional evidentiary development needed to adequately adjudicate the claim, to include obtaining a single medical opinion addressing the impact of all the Veteran's disabilities on his employability. The claims file includes the report of a May 2013 examination report in which the examiner referenced the Veteran's PTSD evaluation by a Dr. N.W. on May 6, 2013, and included the findings of that examiner in rendering an opinion. However, a copy of the report of the PTSD evaluation report is not associated with the evidentiary record. As such report must be reviewed by the Board, the RO should to obtain such report and associated with the paper or electronic file.. In addition, the Veteran recently submitted a statement to the Board indicating that he continues to be treated for PTSD by Dr. E.W. and requesting that his current treatment records be obtained. See March 2013 VA Form 21-4138. The evidentiary record contains treatment records from a Dr. E.W. dated from 2005 to 2007; however, records dated from 2007 to the present are not associated with the record. Because these records may contain information and evidence regarding whether the Veteran's service-connected PTSD results in unemployability, the outstanding private records should be obtained. Therefore, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see 38 U.S.C.A. § 5103(b) (3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain all outstanding records from Dr. E.W. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the TDIU claim remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Locate a copy of the PTSD evaluation conducted on May 6, 2013 by Dr. N.W. and associate it with the evidentiary record. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim for a TDIU on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, records from Dr. E.W. dated from 2007 to the present. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If he responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, if any additional private treatment records received contain information or evidence relevant to the TDIU claim on appeal, request that the physician who provided the May 2013 VA opinion review the evidence added to the record since the May 2013 VA examination . Thereafter, the examiner should opine whether, based on review of the new evidence, his opinion has. or has not, changed,, with an adequate discussion and rationale provided in support of any opinion offered. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the TDIU claim on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).