Citation Nr: 1752484	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  09-37 578	)	DATE
	)
	)

		On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), in excess of 50 percent from November 5, 2007, to August 4, 2016 and in excess 70 percent since August 5, 2016.

2.  Entitlement to a total disability rating based upon unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

H. Daus, Associate Counsel


INTRODUCTION

The Veteran had qualifying service from February 1987 to July 1991 and January 2002 to November 2003.   

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008 and July 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Veteran testified at an April 2011 Travel Board hearing before the undersigned Veterans Law Judge.  Subsequently, the Veteran requested another hearing; however, this is not warranted.  See February 2013 Statement; 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.700 (2017). 

In December 2011 and January 2015, the Board remanded for further development.  Substantial compliance was not achieved.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

In an August 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the PTSD rating to 70 percent, effective August 5, 2016.  However, because the maximum disability rating has not yet been granted, the appeal remains properly before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

The appeals are REMANDED to the AOJ.  VA will notify the Veteran when further action is required.




REMAND

While additional delay is regrettable, the Board finds that another remand is required to fairly decide the Veteran's claims.  The Veteran generally contends that the manifestations of his PTSD are more severe than contemplated by his current ratings (50 percent from November 5, 2007, to August 4, 2016, and 70 percent since August 5, 2016) and prevent him from obtaining and/or maintaining a substantially gainful occupation.  See October 2017 Appellate Brief.  However, the evidence currently of record is insufficient to decide the claims. 

First, the Veteran must be afforded a new VA examination.  The Veteran was last afforded a VA psychiatric examination in August 2016.  In an August 2017 statement, the Veteran contended worsening of his psychiatric symptoms and described manifestations beyond what the August 2016 examiner assessed (including hallucinations).  As such, the Board requires a new examination to determine the current severity of his psychiatric disorder.   

Second, the Veteran repeatedly contended that he has been denied access to medical records in VA's possession (including, but not limited to, copies of his VA examination reports), which has hindered efforts to submit further arguments in support of his claims.  See October 2012 Correspondence; August 2017 Statement.  Before the Board may proceed, the AOJ must ensure that the Veteran has access to these records and enough time to review them and submit any further arguments.  

Third, because the TDIU and PTSD claims are inextricably intertwined, TDIU must be remanded concurrently.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  As the Veteran reported worsening symptoms since the August 2016 examination, schedule a new examination to assess the current severity of his psychiatric disorder.  See August 2017 Statement; Remand body, paragraph 2.

2.  As the Veteran reported that he has been denied access to medical records in VA's possession, ensure that the Veteran has access to these records and enough time to review them and submit any further arguments.  See October 2012 Correspondence; August 2017 Statement; Remand body, paragraph 3.

3.  As the TDIU and PTSD claims are inextricably intertwined, complete the above development before readjudicating the issues herein.  See Harris, 1 Vet. App. at 180; Remand body, paragraph 4.  

The Veteran has the right to submit additional evidence and argument on the remanded matters.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  All remanded claims must be handled expeditiously.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).



_________________________________________________
L.M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals

Only a Board decision is appealable to the United States Court of Appeals for Veterans Claims.  See 38 U.S.C. § 7252 (West 2012).  This remand is in the nature of a preliminary order and does not constitute a Board decision on the merits of your appeals.  See 38 C.F.R. § 20.1100(b) (2017).