Citation Nr: 1506881 Decision Date: 02/13/15 Archive Date: 02/18/15 DOCKET NO. 09-25 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE 1. Entitlement to an increased rating in excess of 70 percent for service connected posttraumatic stress disorder (PTSD) from May 22, 2008, and in excess of 50 percent in the year prior to the May 2008 date of claim. 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities in the year prior to the May 2008 date of claim. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ) in August 2011. A transcript of the hearing is associated with the claims file. The Board remanded the issues on appeal for additional development in December 2011. While on remand, the RO granted an increased rating of 70 percent PTSD in a September 2012 rating decision. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In the same September 2012 decision, the RO also granted entitlement to a total disability rating based on individual unemployability (TDIU). As to the December 2011 Remand, the directed records request having been sent and the requested examination having been conducted, the Board finds that the directives have been substantially complied with and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND VA's duty to assist a claimant includes the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Of record is a February 2010 letter from the Social Security Administration (SSA) indicating that the Veteran has been found to be disabled as of September 1, 2009, although the letter does not state the specific disabilities underlying the determination. Thus, the Board cannot affirmatively find that the SSA records are not relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007). If the Veteran has received disability compensation benefits from SSA for his PTSD, records in the custody of SSA pertaining to that claim would be beneficial in adjudicating this claim. This is particularly true as the disability determination was made during the pendency of the current appeal, and therefore any medical evidence could potentially reflect the current severity of his PTSD. Thus, based on the circumstances of this particular case, the Board concludes the AOJ should attempt to obtain the records from SSA. Additionally, in a September 2014 statement, the Veteran's representative specifically states that the 70 percent rating should, "actually be effective from two days prior, per 38 C.F.R. § 3.400(o)(1)." He also references 38 C.F.R. § 3.400(o)(2) and asserts entitlement to an effective date between May 20, 2007, and May 20, 2008, for the increased rating and TDIU. It was argued that this is an appropriate issue for the Board to address, as determining the effective date for an increased rating must be considered as part and parcel of any increased rating claim. Accordingly, the case is REMANDED for the following action: 1. Make appropriate efforts to obtain a complete copy of the Veteran's SSA disability determination and the underlying records as they relate to his PTSD. All efforts to obtain such Social Security records should be fully documented, and a negative response must be provided if records are not available. If unavailable, the Veteran should be properly notified and given an opportunity to provide the records in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, readjudicate the issues on appeal, to include the appropriate period for increased rating and TDIU in light of the date of claim, considering all relevant time periods. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).