Citation Nr: 1330194 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-13 866A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntsville, West Virginia, which granted service connection for PTSD and assigned a 50 percent evaluation effective March 6, 2009. The RO in Columbia, South Carolina, currently has jurisdiction of the claim. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The Board notes that the October 2009 rating decision denied entitlement to a temporary total evaluation associated with the Veteran's treatment at a VA Medical Center (VAMC). The Veteran's notice of disagreement included this issue. In a March 2010 rating decision, the Huntington RO determined that clear and unmistakable error had been committed in the October 2009 rating decision and that a 100 percent rating was warranted pursuant to 38 C.F.R. § 4.29 effective March 6, 2009. The 50 percent rating was continued effective May 1, 2009. The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in August 2011. A transcript is of record. The issue of entitlement to a TDIU as a result of the service-connected PTSD was raised at that time. Since entitlement to a TDIU is an element of a claim for increased rating, that issue has been included as listed on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 Veteran failed to appear for a VA examination scheduled in July 2010. At his hearing, he testified that he never received notice of the scheduled examination. The Board finds this testimony to be credible. On remand, another VA examination should be scheduled to assess the current severity of the Veteran's PTSD. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). It also appears that there may be outstanding VA treatment records. A May 2010 record from the VAMC in Martinsburg, West Virginia, indicates that the staff had been unable to reach the Veteran to conduct aftercare follow up; that he had left a GOALS program with the intention of going to South Carolina; and that review of records indicated that he had enrolled at the Charleston VAMC. There are no records from the Charleston VAMC of record. Any such records should be obtained on remand. In addition, although the Board acknowledges that the Veteran denied receiving any treatment at the time of his August 2011 Board hearing, records from the Augusta VAMC dated since November 2010 should also be obtained. Regarding the issue of entitlement to a TDIU, the Veteran should be sent a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013), and an appropriate VA examination should be scheduled. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Send a notice letter to the Veteran and his representative that informs him of the information and evidence necessary to substantiate the claim for TDIU. The letter should contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. The Veteran and his representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Obtain the Veteran's complete treatment records, if any, from the Charleston VAMC. 3. Obtain the Veteran's treatment records from the Augusta VAMC, dated since November 2010. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of his PTSD. 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. All appropriate tests and studies must be accomplished and all clinical findings reported in detail. A detailed history, to include work history, should be obtained from the Veteran. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 5. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. Finally, readjudicate the claims, to include the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. 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 or by the U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).