Citation Nr: 1339959 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-12 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to June 27, 2007, in excess of 50 percent from June 27, 2007, to September 27, 2009, and in excess of 70 percent as of September 28, 2009, for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to April 26, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a hearing at the RO before the Board in March 2011. In May 2011, the Board remanded the claim for a higher initial rating for posttraumatic stress disorder (PTSD) to obtain any outstanding VA outpatient treatment records and schedule the Veteran for a VA examination to determine the severity of his PTSD. The VA outpatient treatment records were obtained and an examination was conducted in June 2011. The report of that examination shows compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). An April 2012 rating decision increased the rating for PTSD to 50 percent effective June 27, 2007, and 70 percent effective September 28, 2009. As those increases do not represent the maximum ratings available, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). A May 2013 rating decision granted a total disability rating based on individual unemployability (TDIU) due to service-connected disability, effective April 26, 2012, based on the date of receipt of the claim. As the only other service-connected disability is tinnitus, rated at 10 percent, the record indicates that the Veteran is unemployable due largely to his PTSD. Moreover, as he filed his claim for a TDIU during the pendency of this appeal, the Board finds that the issue of entitlement to a TDIU prior to April 26, 2012, is before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Regrettably, the Board finds that a remand is needed to ensure a complete record and to address a procedural deficiency. After completing the remand actions on appeal, the Veteran's for a higher initial rating for PTSD was adjudicated in an April 2012 supplemental statement of the case. However, the claims file shows that the supplemental statement of the case was returned. An earlier January 2011 correspondence sent to the same address used in the supplemental statement of the case was returned with a note from the United States Postal Service that the mail could not be forwarded. Also, a June 2011 report from the Clarksburg VA Medical Center (VAMC) in reference to the scheduling of a VA examination shows a new address. Another new address is seen in correspondence from the spouse received in November 2012. Therefore, on remand, the Veteran's current mailing address should be determined and the April 2012 supplemental statement of the case should be resent. To help facilitate, the Board observes that the Veteran's telephone number remains the same and is listed in the spouse's November 2012 correspondence. In addition, the Veteran's Virtual VA file shows that pertinent evidence has been obtained since the issuance of the April 2012 supplemental statement of the case, including additional VA outpatient treatment records and a November 2012 VA psychiatric examination report. Although that evidence was considered by the RO in a May 2013 rating decision that addressed a new claim for an increased rating for PTSD based on a claim for a TDIU, to ensure due process, that evidence should be considered in a supplemental statement of the case. Also, the rating decision cites evidence that may be pertinent to the appeal, including the Veteran's claim for a TDIU, that is not present in the electronic files or VA claims file. Therefore, that evidence should be associated with the claims file. The record also indicates that the rating decision may not have been received by the Veteran. Although the rating decision was not returned, it was sent to the same address used in the supplemental statement of the case. Therefore, to ensure due process, the May 2013 rating decision should be resent. Lastly, the Veteran receives treatment from the Clarksburg VAMC, and the record contains treatment notes through April 2013. Any outstanding treatment notes since that time should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Using the Veteran's telephone number as listed in the spouse's November 2012 correspondence, determine the current mailing address and resend the April 2012 rating decision and April 2012 supplemental statement of the case. 2. Associate with the Veteran's claims file or add to the electronic claims file the evidence cited in the May 2013 rating decision. 3. Obtain any records of treatment from the Clarksburg VAMC since April 2013. 4. Then, readjudicate the claim for a higher initial rating for PTSD, including adjudication of the claim for a TDIU prior to April 26, 2012. If any decision is adverse to the Veteran, issue an supplemental statement of the case and allow the appropriate time for response. Then, return the claims to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ Harvey P. Roberts 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) (2013).