Citation Nr: 1327692	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  11-00 229	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to a disability rating in excess of 20 percent for hearing loss disability.

2.  Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

3.  Entitlement to a total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

A. VanValkenburg, Associate Counsel

INTRODUCTION

The Veteran served on active duty with the United States Army from March 1969 to March 1971, to include honorable service in the Republic of Vietnam.

These matters come before the Board of Veterans' Appeals (Board) on appeal from the December 2009 decision by the Buffalo, New York, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied the benefits sought on appeal.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence.  

The Veteran's representative, on the Veteran's behalf, has asserted a TDIU claim in the March 2012 Informal Hearing Presentation (IHP).  The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability or disabilities is part and parcel of an initial or increased rating claim when such claim is raised by the record.  In light of the Court's holding in Rice, the Board has expanded the appeal to include a claim for a TDIU.  

The issues of PTSD and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

In the March 2012 correspondence, prior to the promulgation of a Board decision, the Veteran withdrew his appeal for an increased rating of service-connected hearing loss disability.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim of entitlement to an increased rating for service-connected hearing loss disability.  38 U.S.C.A. §§ 7105(a), 7108; 38 C.F.R. § 20.204.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.

A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. See 38 C.F.R. § 20.204(b).

In this case, the RO awarded the Veteran service-connection for hearing loss at 10 percent in a September 2003 rating decision.  In a July 2005 rating decision, the disability was increased from 10 to 20 percent.  The Veteran submitted a claim for an increased rating in July 2009.  The Veteran subsequently perfected an appeal of the denial of a higher disability evaluation.  

Through his representative, the Veteran has recently submitted a statement received by the Board in March 2012 indicating that he wished to cancel his appeal of his hearing loss rating.  The Board finds that this statement qualifies as a valid withdrawal of the issue on appeal.  See 38 C.F.R. § 20.204.

Therefore, in light of the Veteran's withdrawal of his appeal there remains no allegation of error of fact or law for appellate consideration.  Accordingly, the appeal of the denial of a higher disability evaluation for a hearing loss disability will be dismissed.


ORDER

The appeal for entitlement to an increased rating for bilateral hearing loss disability is dismissed. 


REMAND

The Board finds that further evidentiary development is necessary regarding the Veteran's claim for an increased rating for PTSD and a TDIU.  

The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency.  38 U.S.C.A § 5103A; 38 C.F.R. § 3.159.   The Veteran identified current one-on-one intensive therapy and group therapy during a 2011 VA examination.  On Remand, the RO or the Appeals Management Center (AMC) must take appropriate steps to obtain complete VA treatment records from December 2009 to present.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim)

The Veteran contends PTSD necessitated his retirement in 2005, rendering him unemployable.  A claim for a TDIU may be presented informally or may be raised by the facts. "Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the 'identify the benefit sought' requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU." Roberson v. Principi, 251 F. 3d 1378, 1384  (Fed. Cir. 2001).   The Veteran has clearly raised the issue of entitlement to TDIU through his representative in his March 2012 IHP, as discussed in the introduction.  

The issue of TDIU requires development to assess whether the Veteran is unemployable and if so, whether or not his service-connected disabilities are the cause of his unemployability.  On Remand, the RO or the AMC must undertake additional efforts to ensure that all identified employment records and histories have been obtained and associated with the claims file. 

The Veteran asserts PTSD caused his retirement during his January 2011 VA examination.  The January 2011 VA examination did not indicate whether the Veteran's service-connected PTSD, either alone or in combination with the Veteran's other service-connected disabilities, precluded all forms of employment rendering the Veteran unemployable.  The medical records associated with the claims file are absent an opinion as to whether his service-connected PTSD and hearing loss render him unable to maintain substantial gainful employment.  On Remand, the Veteran should accordingly be scheduled for an examination to determine the current severity of his PTSD and an opinion of the impact of all service-connected disabilities on employability. See McLendon v. Nicholson, 20 Vet. App. 79  (2006); see also 38 C.F.R. § 3.159(c)(4) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim].  Prior to scheduling any examinations, the RO or the AMC should obtain all outstanding treatment records pertinent to the issues on appeal.  

Accordingly, the case is REMANDED for the following action:

1.  The RO or the AMC should provide all required notice in response to the Veteran's most recent claim of entitlement to a TDIU and provide the Veteran with a VA Form 21-8940, the Veteran's Application for Increased Compensation Based on Unemployability.  

After receiving a completed VA form 21-8940, the RO or the AMC should forward VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employers listed on the VA Form 21-8940.  
2.  The RO should obtain the names and addresses of all health care providers who treated the Veteran for his PTSD since December 2009.  After securing the necessary release, the RO should obtain these records.

3. Then, the RO or the AMC also should arrange for the Veteran to be scheduled for a VA examination to assess (a) the severity of the Veteran's PTSD and (b) whether his PTSD alone, or in combination with his service-connected hearing loss disability, renders him unable to secure or follow a substantially gainful occupation. 

The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 

The supporting rationale for all opinions expressed must be provided.

4.  Then, after ensuring any other necessary development has been completed, the RO or the AMC should readjudicate the Veteran's claims-including his claim for a TDIU due to service-connected disabilities. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action.  

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).



______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs