Citation Nr: 1416613 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 09-28 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a compensable rating for a left knee disability prior to September 10, 2009 and in excess of 10 percent from that date. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to September 15, 2009, and in excess of 70 percent from that date. 3. Entitlement to an effective date prior to September 15, 2009 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from December 1982 to March 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2007 and June 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The April 2007 rating decision continued a 30 percent rating for PTSD, and a 0 percent rating for a left knee disability, and denied entitlement to a TDIU. A notice of disagreement was received in April 2008, and a statement of the case (SOC) was issued in June 2009. A substantive appeal was received in August 2009 with a request for a video conference hearing. In November 2009, a formal Decision Review Officer hearing was held at the RO; a transcript of that hearing is included in the claims file. An interim June 2010 rating decision increased the ratings for PTSD to 70 percent effective September 15, 2009, and for a left knee disability to 10 percent effective September 10, 2009, and granted entitlement to a TDIU effective September 15, 2009. A notice of disagreement with regard to the effective date of the award of a TDIU was received in December 2010; an SOC was issued in January 2012; and a substantive appeal was received in February 2012. Also in February 2012, the Veteran withdrew his earlier request for a Board hearing. The issues of entitlement to a rating in excess of 30 percent for PTSD prior to September 15, 2009, and in excess of 70 percent from that date, and entitlement to an effective date prior to September 15, 2009 for the grant of a TDIU are REMANDED to the AOJ. FINDING OF FACT In a February 2012 Veteran's Brief submitted by the Veteran's attorney (prior to the promulgation of a decision in the appeal on the matters) the Veteran indicated that he intended to withdraw his appeal seeking entitlement to a compensable rating for a left knee disability prior to September 10, 2009 and in excess of 10 percent from that date; there is no question of fact or law remaining before the Board in the matter. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the appellant have been met; the Board has no further jurisdiction in the matter of entitlement to a compensable rating for a left knee disability prior to September 10, 2009 and in excess of 10 percent from that date. 38 U.S.C.A. §§ 7104(a), 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, given the appellant's expression of intent to withdraw his appeal in the matter of entitlement to a compensable rating for a left knee disability prior to September 10, 2009 and in excess of 10 percent from that date, further discussion of the impact of the VCAA on the matter is not necessary. Legal Criteria, Factual Background, and Analysis Dismissal The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made in writing or on the record at a hearing by the appellant or by his authorized representative. 38 C.F.R. § 20.204. In a February 2012 Veteran's Brief by the Veteran's attorney, the Veteran expressed his intent to withdraw his appeal in the matter of entitlement to a compensable rating for a left knee disability prior to September 10, 2009 and in excess of 10 percent from that date. Inasmuch as he has withdrawn his appeal in this matter, there is no allegation of error of fact or law in the matter remaining before the Board. Hence, the Board does not have jurisdiction to consider the appeal in this matter, and such appeal must be dismissed. ORDER The appeal on the issue of entitlement to a compensable rating for a left knee disability prior to September 10, 2009 and in excess of 10 percent from that date, is dismissed. REMAND An April 2004 VA outpatient general psychiatry report noted that the Veteran had not been working since June 2001 because of right shoulder pain. He was declared permanently disabled from GM (his employer) in June 2002. It was further noted that he was having significant PTSD symptoms A November 2004 VA outpatient general psychiatry report noted he was successful in getting his worker's compensation benefits approved. Records pertaining to the declaration of permanent disability by an employer, and the award of Workers' Compensation are pertinent evidence. Since such evidence is outstanding, it must be secured. The Board observes that VA psychiatric treatment records (February 2000 to January 2005) have consistently noted "His diagnoses and GAF score have been documented in CPRS." CPRS is a VA computer program that is not accessible to the Board, and such recorded data have not been associated with the Veteran's claims file and/or Virtual VA file. On remand the RO should associate any such records with the Veteran's claims file. The Veteran's last VA PTSD examination was in September 2009. Given the increase to 70 percent for PTSD awarded by the RO effective in September 2009, and the contentions and legal criteria for a rating in excess of 70 percent that suggests an increase in pertinent disability since the Veteran's last VA PTSD examination in September 2009, the Board concludes that a remand for a more contemporaneous examination to assess the current severity of the service-connected PTSD is necessary in this case. 38 U.S.C.A. § 5103A; Snuffer v.Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In order to obtain sufficient clinical information to adjudicate the claim, the examiner will also be requested to focus the examination on the relevant criteria for a rating in excess of 70 percent. The Board finds that the issue of entitlement to an effective date prior to September 15, 2009 for the grant of a TDIU is inextricably intertwined with the PTSD issue. Therefore, adjudication of the TDIU issue must be deferred pending completion of the additional evidentiary development, since the outcome of the PTSD issue may impact the eventual determination on the TDIU issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that when a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action to obtain and associate with the claims file psychiatric treatment records (from 2004 to the present) found in CPRS. The Board is particularly interested in VA psychiatric treatment records that document the Veteran's psychiatric diagnosis and Global Assessment of Functioning (GAF) score during that period. 2. The RO should ask the Veteran to provide authorizations for VA to secure from the appropriate state agency and from GM (his former employer) all records pertaining to his work-related injury in 2000 or 2001 and the related Workers' Compensation award (including a copy of the award and all medical records considered). 3. After the development described above is completed, the RO should arrange for the Veteran to be afforded an examination by an appropriate provider to determine the current severity of the service-connected PTSD. The entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. The examiner should describe all findings in detail. Based on examination of the Veteran and review of his record, the examiner should provide examination findings that allow for the application of the rating criteria for mental disorders (specifically in excess of 70 percent). A GAF score should be reported. The examiner should specifically address the functional effects of the disability under the ordinary conditions of daily life, including employment. The examiner must explain the rationale for all opinions, citing to supporting factual data. 4. The RO should then review the expanded record and readjudicate the issues on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs