Citation Nr: 1512346 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 10-31 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with depression not otherwise specified (NOS). 2. Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to June 1970, including combat service in the Republic of Vietnam. His awards include a Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that granted an increased rating of 50 percent for PTSD with depression NOS, effective April 17, 2009, and denied entitlement to a TDIU. Subsequently, in an August 2011 supplemental statement of the case, the RO increased the PTSD rating to 70 percent, effective April 17, 2009. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a February 2015 Informal Hearing Presentation, the Veteran's representative asserted that the PTSD has not been adequately examined, noting that the most recent VA examination was in July 2009. Thus the Board finds a remand is necessary in order to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected PTSD. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The most recent mental health treatment record in the claims file is dated in April 2009. On remand, the Veteran should have the opportunity to identify any outstanding relevant private or VA treatment records. Any identified records should be obtained. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with other issues on appeal. In this decision, the Board is remanding the issue of entitlement to a rating in excess of 70 percent for PTSD with depression NOS. Moreover, in the February 2015 Informal Hearing Presentation, the Veteran's representative informally raised claims of entitlement to service connection for: 1) hypertension, 2) hypertensive heart disease, and 3) back, all as secondary to PTSD. In the same submission he raised claims of entitlement to 4) service connection for peripheral neuropathy as secondary to service-connected diabetes mellitus, as well as 5) an increased rating for service-connected diabetes mellitus. These five issues have not been adjudicated by the AOJ. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). These five issues would generally be referred to the AOJ for consideration in the first instance. However, adjudication of these claims could impact the TDIU claim. As the five claims are inextricably intertwined with the TDIU claim being remanded, in the interest of fairness to the Veteran and efficient usage of VA resources, the Board will also remand these five claims for appropriate development and adjudication. Tyrues. The remand of the claims raised in the February 2015 Informal Hearing Presentation for initial development and adjudication is wholly consistent with the United States Court of Appeals for the Federal Circuit's observation in Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011) that no law or regulation precludes VA from providing additional assistance in developing a claim when it is deemed appropriate. See 38 U.S.C.A. § 5103A(g) (West 2014); see also Savage v. Shinseki, 24 Vet. App. 259, 268-71 (2011). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to the five claims raised in the February 2015 Informal Hearing Presentation. Notice should include VA's and the Veteran's responsibilities to provide evidence and information in support of those claims, including on a secondary basis. Allow an appropriate amount of time for response and associate the notification with the claims file. 2. Ask the Veteran to identify any private or VA providers who treated him for mental health after April 2009. After securing any necessary authorizations, obtain any identified treatment records, physically or electronically. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of the nature, extent and severity of his psychiatric symptoms and the impact of his service-connected disabilities on his ability to work. Provide an appropriate amount of time to submit this lay evidence. 4. After completing the above, schedule the Veteran for an appropriate VA examination to determine the severity of his PTSD with depression NOS. The examiner should review the claims file and note such review in the report. All psychiatric symptoms and social and occupational impairment should be addressed. All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. 5. Upon completion of the aforementioned development efforts and any other appropriate development, adjudicate in the first instance the Veteran's five claims raised in the February 2015 Informal Hearing Presentation. 6. Then, readjudicate the Veteran's claim for a higher rating for PTSD with depression NOS, to include adjudication of the TDIU claim, with consideration of all evidence of record. If any benefit sought on appeal is not granted in full, furnish a supplemental statement of the case and an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ STEVEN D. REISS 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).