Citation Nr: 1337176 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-13 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to November 1969. He appealed to the Board of Veterans' Appeals (Board/BVA) from July 2007 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The July 2007 rating decision granted service connection for PTSD and assigned an initial 50 percent rating for this disability retroactively effective from June 14, 2006. The April 2008 rating decision denied entitlement to a TDIU and confirmed and continued the 50 percent initial rating for the PTSD. The Veteran submitted a statement in support of claim (VA Form 21-4138) in June 2008, so within one year of receiving notification of the July 2007 decision, requesting "reconsideration on the PTSD issue." He cited letters from his VA treatment providers as reasons for increasing the rating for this disability. Since, in effect, he timely contested the initial rating assigned for his PTSD by submitting the June 2008 statement requesting reconsideration of this rating, that is, within one year of receiving notification of the decision assigning this initial rating, his statement was tantamount to a timely Notice of Disagreement (NOD) with this initial rating. An NOD need not contain any magic words or phrases. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). Consider also that, pursuant to 38 C.F.R. § 3.156(b), any new and material evidence received within one year of an RO decision must be considered "as having been filed in connection with the claim which was pending at the beginning of the appeal period." See Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Therefore, this appeal concerns an initial rather than established rating. Regardless, in either circumstance the Board must consider whether to "stage" the rating, meaning assign different ratings at different times if there have been occasions when the disability has been more severe than at others. Compare and contrast the holdings in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran testified before the undersigned Veterans Law Judge of the Board at a videoconference hearing in February 2013. During the hearing he withdrew his TDIU claim from the appeal, so the Board is summarily dismissing this claim. His remaining claim of entitlement to an initial rating higher than 50 percent for his PTSD requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT In February 2013, during his videoconference hearing before the Board, the Veteran withdrew his appeal for a TDIU. A transcript of the proceeding has been obtained, affirming his name, claim number, and intent on withdrawing his appeal of this claim. CONCLUSION OF LAW The criteria are met for withdrawal of his Substantive Appeal concerning the claim for a TDIU. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION During his February 2013 videoconference hearing before the Board, the Veteran stated on the record that he was withdrawing from this appeal his claim of entitlement to a TDIU. The February 2013 hearing has been transcribed, so reduced to writing. According to 38 C.F.R. § 20.204(b), a withdrawal of an appeal must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn, and must be received by the Board prior to issuance of a decision regarding the claim being withdrawn. The Veteran's hearing testimony is now in writing, and the transcript lists his name and claim number and clearly expresses his withdrawal of the claim for a TDIU. And since the Board had not yet issued a decision concerning this claim, the criteria are met for withdrawal of the appeal of this claim. See id. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C.A. § 7105(d). Accordingly, further action by the Board concerning this claim of entitlement to a TDIU is unwarranted, and the appeal of this claim is dismissed. Id. ORDER The claim of entitlement to a TDIU is dismissed. REMAND Also during his February 2013 hearing, the Veteran testified that he believed his PTSD had worsened over the years, including since his last VA compensation examination for this disability in June 2009. He talked about his litany of symptoms as evidence of this increase in severity of this disability, including especially in terms of how they affect his social and occupational functioning. He further testified that he had received ongoing consultations with psychiatrists at the VA Medical Center (VAMC) in Peoria. A review of the claims file also shows he received relevant treatment through the Iowa City VAMC and Omaha VAMC. The most recent VA records in the file only date up to October 2009. In light of his assertions, the claim for a higher initial rating for his PTSD must be remanded to provide him a new VA compensation examination reassessing the severity of his PTSD and to obtain his outstanding VA treatment records. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain the Veteran's outstanding treatment records from the VAMCs in Peoria, Iowa City, and Omaha for the period from October 2009 through the present and associate them with the claims file for consideration. The amount of efforts needed to be expended in obtaining outstanding records depends on who has custody of them. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) does if they are. The Veteran also must be appropriately notified if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule another VA compensation examination to reassess the severity of the Veteran's PTSD. The claims folder, including a complete copy of this remand, must be provided to and reviewed by the examiner in conjunction with the examination. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected PTSD, in accordance with the rating criteria specified at 38 C.F.R. § 4.130, Diagnostic Code 9411. The examiner should assign a Global Assessment of Functioning (GAF) score and explain the basis for this finding. It is most essential the examiner discuss the medical rationale of all opinions expressed, whether favorable or unfavorable to the claim, based on the objective clinical findings and information obtained from review of the record. 3. Then readjudicate this claim of entitlement to an initial rating higher than 50 percent for the PTSD in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs