Citation Nr: 1326916 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-08 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from September 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). Service connection for PTSD was awarded by the July 2008 rating decision, and a 30 percent initial evaluation was assigned, effective February 12, 2007. The Veteran did not submit a Notice of Disagreement to the July 2008 rating decision. In January 2009, he filed a new claim for entitlement to an increased rating for his service-connected PTSD. Nevertheless, new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). In this case, new and material evidence in the form of a February 2009 VA examination was received within one year of the unappealed July 2008 rating decision. Accordingly, the Veteran's claim has been pending since the July 2008 rating decision, and is properly characterized as a claim for entitlement to an initial rating greater than 30 percent rather than entitlement to a claim for an increased rating, as reflected on the cover page of this decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In April 2012, the Board issued a decision which denied entitlement to an increased rating greater than 30 percent for PTSD. The Veteran appealed the Board's April 2012 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2012 Order granting a September 2012 Joint Motion for Remand (JMR), the Court vacated the Board's April 2012 decision and remanded the case to the Board for additional reasons and bases. In March 2013, a letter was sent to the Veteran and his representative in which he was given 90 days from the date of the letter to submit additional evidence or argument in support of his appeal prior to the Board's readjudication. In May 2013, the Veteran's representative submitted additional evidence and argument to the Board along with a waiver of the Veteran's right to have his claim readjudicated with the additional evidence. See 38 C.F.R. § 20.1304(c) (2012). In the May 2013 argument and evidence submitted by the Veteran's representative in support of his claim for entitlement to an increased rating for PTSD, the Veteran's representative raised the issue of entitlement to a TDIU as a result of his service-connected PTSD. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that VA must address the issue of entitlement to a TDIU in increased rating claims when the issue of unemployability is raised by the record. As the issue of entitlement to a TDIU has been raised by the record, the Board has jurisdiction over the Veteran's TDIU claim and, for the purpose of clarity, has separately captioned the issue. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND As noted above, in an April 2012 decision, the Board denied the Veteran's claim of entitlement to an increased rating greater than 30 percent for PTSD. The Veteran appealed the Board's decision to the Court, and in September 2012, the Court remanded the issue of entitlement to an increased rating greater than 30 percent for PTSD to the Board for additional reasons and bases in compliance with the JMR. Review of the evidence received since the September 2012 Court Order reflects that there may be additional evidence relevant to the Veteran's claims which has not yet been associated with the claims file. Specifically, in a June 2013 VA treatment record, the Veteran stated that he received a "decision from C&P and is now 70% service connected for PTSD." Review of the claims file does not reflect a rating decision dated more recently than April 2012. Also, if there is an outstanding rating decision awarding a higher rating for PTSD, there may be additional medical evidence relevant to the Veteran's claim which has not been associated with the claims file. As it appears that the record before the Board may not be a complete record, remand is necessary to ensure that all relevant evidence and rating decisions are before the Board before the Board renders its decision. With regard to the Veteran's claim for entitlement to a TDIU, that claim is inextricably intertwined with the claim for entitlement to an increased rating for PTSD. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). However, the claim must be adjudicated by the RO prior to appellate consideration by the Board. The record does not reflect such RO adjudication. Accordingly, appellate review of the Veteran's claim for entitlement to a TDIU must be remanded for RO adjudication. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran's claims file is complete and contains all rating decisions and adjudicative actions dated since April 2012, as well as all correspondence to and from the Veteran, and all evidence which has been submitted by the Veteran or obtained on his behalf. In particular, the RO must specifically associate with the claims file any temporary claims file or rating decision awarding a 70 percent evaluation for PTSD. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that it is ultimately his responsibility to provide the identified information. The Veteran and his representative must then be given an opportunity to respond. 2. Provide the Veteran and his representative VCAA notice as to the issue of entitlement to a TDIU. Also provide the Veteran with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, for completion and return to the VA. 3. Thereafter, schedule the Veteran for a VA examination and ask the examiner to opine as to whether it is at least as likely as not that the Veteran's service-connected PTSD, considered in combination with any other service-connected disability, precludes the Veteran from engaging in substantially gainful employment consistent with his education and occupational experience. Rationale must be provided for the opinion offered. The claims folder must be made available to the examiner for review in conjunction with the examination. 4. Following completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned 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).