Citation Nr: 1617114 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 12-30 862 ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2010 rating decision in which the RO denied entitlement to a TDIU due to service-connected PTSD. In October 2010, the Veteran filed a notice of disagreement with the TDIU denial. The RO issued a statement of the case in October 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2012. The Board notes that in December 2010, the Veteran filed an additional application for a TDIU in which he asserted, his service-connected diabetes mellitus, peripheral neuropathy of the bilateral upper extremities, in addition to his service-connected PTSD, prevented him from working. The RO readjudicated and denied the claim in June 2014 and November 2014 supplemental statements of the case. In February 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board notes that, also in February 2016, the Veteran submitted a March 2015 psychiatric evaluation report completed by Dr. R.L.J, which had previously submitted to the RO and not considered. However, the Veteran has not waived initial agency of original jurisdiction (AOJ) consideration of the evidence and the Veteran's substantive appeal related to his TDIU claim was submitted prior to February 2, 2013. See 38 C.F.R. § 20.1304 (2015). However, the AOJ will have opportunity to review the additional evidence received on remand (discussed below), and the Veteran is not prejudiced by the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. This appeal is now being processed utilizing the paperless, electronic Virtual Benefits Management System (VBMS) and Virtual VA (VVA) claims processing systems. For the reasons expressed below, the claim on appeal is being remanded to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. The Veteran filed claims for an increased rating for his PTSD in July 2012 and in June 2014. In October 2014, the RO granted a 70 percent rating for PTSD, effective June 20, 2014. In April 2015, prior to certification of the appeal of the TDIU denial to the Board, the Veteran submitted new evidence, which indicates a potential worsening of the Veteran's PTSD. In a May 2015 rating decision, the RO assigned an earlier effective date of July 16, 2012, (the date of the first claim for increase). However, the RO did not consider the new evidence in rendering the May 2015 rating decision. In May 2015, the Veteran requested that the RO reconsider its decision to include consideration of the new evidence. The RO took no further action. Under 38 C.F.R. § 3.156(b), when a claimant submits evidence within the appeal period, the claim remains open until VA provides a determination that explicitly addresses this new submission. See Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (holding "an underlying claim remains pending, despite the issuance of a final decision, when the RO does not respond to new and material evidence submitted during the appeal period" under § 3.156(b), citing Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed.Cir.2014)). Here, the RO never issued a decision "directly responsive" to the April 2015 submission of the March 2015 psychiatric evaluation, which was submitted within one year of the October 2014 rating decision. Id; 38 C.F.R. § 3.156(b). The Veteran's July 2012 increased rating claim for PTSD, therefore, remains open. As indicated, only the claim for a TDIU is in appellate status. However, as the RO has not yet adjudicated the claim for increased rating for PTSD (his most significant disability) in light of the newly submitted evidence, and such determination may bear on the manner in which the TDU claim is considered, Board consideration of the Veteran's entitlement to a TDIU, at this juncture, would be premature. Here, if the RO grants a 100 percent rating for the Veteran's PTSD for any portion of the period being considered with respect to the TDIU claim, adjudication of such claim would be based on consideration of the Veteran's service-connected disabilities other than PTSD. Cf. Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (explaining that a veteran could "be awarded TDIU for a single disability and thereafter be awarded disability ratings for other conditions"). As deferral of the TDIU claim pending adjudication of the increased rating claim is warranted, remand of the claim on appeal is appropriate. While this matter is on remand, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the San Antonio VA Medical Center (VAMC), and that records from these facilities dated through June 2014 are associated with the file; however, more recent records may exist. Hence, the AOJ should obtain all records of pertinent treatment from the San Antonio VAMC dated since June 2014. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to include as regards private (non-VA) records), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see 38 U.S.C.A. § 5103(b)(3) (2015) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted (to include arranging for an examination or to obtain a medical opinion, if appropriate), prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Adjudicate the pending claim for an increased rating for PTSD in excess of 70 percent based on consideration of the March 2015 psychiatric evaluation report completed by private psychiatrist, Dr. R.L.J. 2. Obtain from the San Antonio VAMC (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since June 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, current authorization to obtain any additional evidence pertinent to the claim for a TDIU due to service-connected disabilities that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical and employment records. In the letter, explain to the Veteran what is needed to support a TDIU due to service-connected disabilities. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).