Citation Nr: 1429271 Decision Date: 06/27/14 Archive Date: 07/03/14 DOCKET NO. 05-28 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to October 1, 2010. 2. Entitlement to an initial rating in excess of 70 percent for service-connected PTSD from October 1, 2010 to December 30, 2010. REPRESENTATION Appellant represented by: Wade R. Bosley, Attorney at Law ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a July 2008 decision, the Board denied the claim for an initial increased rating in excess of 30 percent for PTSD. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In the July 2008 decision, the Board also denied claims seeking service connection for bilateral hearing loss and tinnitus, but the Veteran explicitly disclaimed any appeal of those issues. In October 2009, the Court issued a Memorandum decision setting aside the Board's denial of an initial rating in excess of 30 percent for PTSD and remanded the appeal to the Baord for further consideration. In doing so, the Court explicitly affirmed the Board's denial of entitlement to an extra-schedular rating, and so only the propriety of a schedular rating was before the Board. In November 2010, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. In an October 2012 decision, the Board awarded an initial rating in excess of 50 percent for PTSD prior to October 1, 2010 and an initial rating in excess of 70 percent from October 1, 2010 to December 30, 2010. The Veteran once again appealed the Board's decision to the Court. The Secretary of Veterans Affairs and the Veteran, through his attorney, filed a joint motion to vacate the Board's decision in August 2013 and remanded the claim back to the Board. Moreover, in the October 2012 decision, the Board denied an initial rating in excess of 70 percent for PTSD from December 30, 2010, which was dismissed by the Court and remanded a claim of entitlement to a TDIU prior to December 30, 2010 for further development. Development on the remanded claim of entitlement to a TDIU prior to December 30, 2010 has not been completed and is not before the Board at the present time. The Board notes that in a May 2004 RO decision, the Veteran was awarded two temporary 100 percent evaluations, one effective October 24, 2003, and the other effective March 15, 2004, because of hospitalizations over 21 days. 38 C.F.R. § 4.29. In a February 2012 rating decision, the RO granted a 70 percent rating, effective December 30, 2010, and another temporary total evaluation was assigned from July 7, 2011 to September 1, 2011. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the claim must be remanded at this time because the Veteran has submitted additional evidence in accordance with the 90-day rule as per 38 C.F.R. § 20.1304(c); however, he did not submit a waiver of RO consideration as prescribed by the regulations. Specifically, the evidence consists of a September 2014 report from a vocational expert which pertains to the Veteran's PTSD claim on appeal. Thus, this case must be remanded to the RO for proper consideration of the evidence. Accordingly, the case is REMANDED for the following action: Review the claims file to ensure that all development deemed warranted is completed, and arrange for any additional development indicated. Then, readjudicate the issues of entitlement to initial increased ratings in excess of 50 percent for PTSD prior to October 1, 2010, and in excess of 70 percent from October 1, 2010 to December 30, 2010, in light of applicable legal authority and all pertinent evidence of record, to specifically include the September 2014 report from a vocational expert. If the benefit sought remains to be denied, a supplemental statement of the case should be furnished to the Veteran and his attorney after according the requisite time period to respond. The claim should be returned to the Board for appropriate appellate review, if otherwise in order. 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 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. 2013). _________________________________________________ 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) (2013).