Citation Nr: 1752269 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-01 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1967, with confirmed duty in the Republic of Vietnam. He is also a recipient of the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. When this case was last before the Board in June 2015, it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case for the issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The development actions directed by the Board's June 2015 remand were not fully completed. A remand by the Board confers on claimants, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). It imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, in the present case, the additional development specified in the Board's prior remand must be conducted prior to adjudication. In the June 2015 remand, the Board instructed the RO to afford the Veteran a new VA examination to determine the nature and extent of all impairments due to the service-connected PTSD, the impact of the PTSD on his employability, and the impact of the PTSD, tinnitus, and bilateral hearing loss on his employability. The examiner or examiners were instructed to provide an opinion as to whether the Veteran's service-connected PTSD is sufficient by itself or with the service-connected tinnitus and bilateral hearing impairment to preclude the Veteran from obtaining or retaining any form of substantially gainful employment consistent with his education and occupational background. A PTSD VA examination was conducted in July 2015 and a tinnitus/hearing loss VA examination was conducted in August 2015. Neither exam addressed the cumulative impact of all of the Veteran's service-connected disabilities on his employability. Additionally, the Board finds that the increased rating claim must also be remanded as it is clearly inextricably intertwined with the matter of entitlement to a TDIU due to service-connected PTSD. Development requested below should produce evidence pertinent to the increased rating matter. Harris v. Derwinski, 1 Vet. App. 180 (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). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding treatment records for his PTSD that are not currently of record. All records/responses must be associated with the electronic claims file. 2. After completing the above, schedule the Veteran for a VA examination with an appropriately qualified examiner to determine the current nature and extent of all impairments due to the service-connected PTSD and the impact of PTSD, tinnitus, and bilateral hearing loss on his employability. Provide the Veteran's claims file, including a copy of this REMAND, to the examiner for review. Any indicated studies should be performed. The examiner should provide all information required for rating purposes. The examiner should provide an opinion as to whether the Veteran's service-connected PTSD is sufficient by itself or with the service-connected tinnitus and bilateral hearing impairment to preclude the Veteran from obtaining or retaining any form of substantially gainful employment consistent with his education and occupational background. In rendering the opinion(s), the Veteran's level of education and previous work experience should be considered, but factors such as age or impairment caused by any non-service-connected disabilities are not to be considered. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Following the completion of the foregoing, and any other development deemed necessary, the RO/AOJ should re-adjudicate the Veteran's claims. If the claims are denied, supply the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claim folder should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran 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). The 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. §§ 5109B, 7112 (West 2012). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).