Citation Nr: 1746921 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-03 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Dorollo Nixon, Jr., Attorney WITNESSES AT HEARING ON APPEAL The Veteran and T.C. ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1987 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans (VA) Regional Office (RO) in Buffalo, New York. In May 2017, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a January 2014 statement the Veteran noted disagreement with the effective date assigned for the grant of service connection for PTSD. The Board notes that the effective date was assigned by a March 2012 rating decision and that the United States Court of Appeals for Veterans Claims (Court) held in Rudd v. Nicholson, 20 Vet. App. 296 (2006), that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error as there are no freestanding claims for an earlier effective date. The Agency of Original Jurisdiction (AOJ) should respond to the Veteran's January 2014 statement. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that her service-connected PTSD is more severe than the assigned 30 percent disability rating. During the May 2017 Board hearing the Veteran testified that her PTSD symptoms have worsened since her last VA examination. Specifically, she testified that her panic attacks have increased from three or four times a week to six times a week. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Weggenmann v. Brown, 5 Vet. App 281 (1993). Based on the Veteran's testimony the Board finds that a remand for a new VA examination is warranted to determine the current severity of her service-connected PTSD. The Board finds that the TDIU issue is inextricably intertwined with the issue of entitlement to an increased rating for PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Therefore, it must be addressed before the Board can adjudicate the TDIU issue on appeal. Updated VA treatment records should also be associated with the claims file. 38 U.S.C.A. § 5103A(c). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to the claim for entitlement to an increased evaluation for service-connected PTSD. All identified VA records should be added to the claims file, to specifically include relevant records from the Binghamton Vet Center since June 2017 and Syracuse VA Medical Center (VAMC) and Binghamton Community Based Outpatient Clinic (CBOC) since November 2016. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Schedule the Veteran for a VA examination to determine the current severity of her service-connected PTSD. The claims folder should be reviewed by the VA examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. If it is possible to differentiate the symptoms attributable to the Veteran's service-connected PTSD and her non-service-connected schizoaffective disorder, the examiner should: a) Identify what symptoms and what level of occupational and social impairment is attributable to each diagnosis. b) Provide an opinion on the occupational impact of the Veteran's service-connected PTSD. 3. If after adjudication, the Veteran continues to not meet the threshold disability percentage requirement for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should consider whether referral to the Director, Compensation Service, for extraschedular consideration is necessary. 4. After the above development has been completed, as well as any other development deemed necessary, the claims for entitlement to an increased evaluation for service-connected PTSD and a TDIU must be re-adjudicated. If any benefit sought on appeal remains denied, provide the Veteran and her attorney with a supplemental statement of the case, and allow an appropriate opportunity to respond thereto before returning the matter to the Board, if otherwise in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2016).