Citation Nr: 1753217	
Decision Date: 11/20/17    Archive Date: 12/01/17

DOCKET NO. 14-03 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to an initial disability rating for service-connected posttraumatic stress disorder (PTSD) in excess of 30 percent from March 22, 2012 to February 29, 2016 and in excess of 50 percent thereafter. 

2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 

In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. During the hearing, the undersigned engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.


REMAND

During his June 2017 hearing, the Veteran indicated that he was receiving treatment from a private physician who opined that the Veteran's PTSD symptoms had worsened. Those treatment records are necessary for adjudication of the Veteran's claim.

Additionally, the issue of entitlement to a TDIU has been reasonably raised by the record. The Veteran reported his PTSD caused him to leave his job during his June 2017 hearing. This issue is considered part and parcel to the Veteran's claim for an increased disability rating PTSD and is therefore inextricably intertwined with that claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). 

However, adjudication of a claim for a TDIU must deferred pending AOJ adjudication of the claim of an increased rating for PTSD. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following actions:

1. Send the Veteran additional VCAA notice as to the issue of entitlement to a TDIU. All notification requirements and development procedures contained in 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017), must be fully met.

2. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file, to include treatment records from Michael J. Gagliardo M.D., Esq. Attempt to obtain any records identified by the Veteran and associate these records with the claims file.

3. Obtain any outstanding VA medical records and associate them with the claims file.

4. After completion of the above and any other appropriate development deemed necessary, readjudicate the issue of an increased disability rating for PTSD on the basis of the additional evidence. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

5. The RO must also adjudicate whether the Veteran is entitled to a TDIU. See Rice, 22 Vet. App. at 447 (VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record).
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 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 (2012).



_________________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (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).