Citation Nr: 1335767 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-31 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 10 percent for residuals of excision of left tarsal navicular (left foot disorder). 3. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from September 1954 to December 1977. This matter comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing in August 2013 before the undersigned Acting Veterans Law Judge. The Veteran also testified before a Decision Review Officer (DRO) at the RO in April 2010. The transcripts of the hearings are of record. The the issue of whether new and material evidence has been received to reopen a claim for service connection for a left ankle disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the Veteran's appeal. The Veteran seeks higher evaluations for his service-connected PTSD and left foot disorder and TDIU. Initially, the Board notes that the claims folder now contains additional evidence including additional VA examinations dated in December 2012 regarding the severity of the Veteran's PTSD and left foot disability since the matter was last adjudicated by the RO in a May 2010 statement of the case (SOC). The Veteran has not submitted a waiver of initial consideration of such evidence by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2013). To ensure that the Veteran's procedural rights are protected, insofar as he is afforded the opportunity for RO adjudication in the first instance, the Board must return the case to the RO, for its initial consideration of the evidence. With regard to the Veteran's claim for entitlement to TDIU, the Board notes that the Veteran is currently assigned a 50 percent evaluation for PTSD; a 20 percent for prostate cancer; a 30 percent for coronary heart disease; a 20 percent for degenerative joint disease of the right shoulder; a 20 percent for hearing loss; a 10 percent for residuals excision, left tarsal navicular; a 10 percent for status-post right ankle trauma; a 10 percent for hypertension; and noncompensable evaluations for bilateral pes planus, left ear high frequency hearing loss, and hemorrhoids. The combined disability rating is 80 percent prior to March 2011, and 90 percent from December 2013. The Veteran also has periods of total disability rating from April 11, 2008, to July 1, 2008, and March 30, 2011, to December 1, 2013. The Veteran has undergone multiple VA examinations to determine the severity of his service-connected conditions; however, the Veteran has not undergone a VA examination for the proper assessment of his claim for entitlement to TDIU. 38 U.S.C.A. § 5103A (West 2002). As such, this issue must be remanded in order to schedule the Veteran for a VA examination to determine whether he is precluded, by reason of service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). The RO/AMC should also take this opportunity to seek the Veteran's assistance in obtaining any outstanding records of pertinent treatment and associate them with the claims file. The record should be updated with the Veteran's VA treatment records since May 2012. The Board notes that the Veteran reported ongoing mental health treatment from Sebring Community Based Outpatient Clinic (CBOC) in the December 2012 VA examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should seek the Veteran's assistance in obtaining any outstanding records of pertinent VA and private treatment and associating them with the claims folder. Any VA treatment records since May 2012 should be associated with the claims folder. Additionally, any outstanding pertinent treatment records should be obtained from the Sebring CBOC. 2. The RO/AMC should schedule the Veteran for an examination with an appropriate medical professional who is qualified to offer an opinion regarding whether the Veteran is unemployable. In proffering an opinion, the examiner should review the claims file, and then offer an opinion as to whether the Veteran's service-connected disabilities (listed above), singularly or jointly, at least as likely as not (a 50 percent or greater probability) render him unable to secure or follow a substantially gainful occupation, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. All opinions expressed should be accompanied by a supporting rationale. 3. Thereafter, the RO/AMC should readjudicate the issues on appeal. In particular, the RO should review all the evidence that was submitted since the May 2010 statement of the case (SOC). If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims file should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE Acting 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).