Citation Nr: 1753750	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-06 635	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 10 percent disabling prior to January 22, 2010, in excess of 30 percent disabling from January 22, 2010 to August 30, 2010, and in excess of 50 percent disabling from August 31, 2010.

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1999 to July 1999 and June 2004 to April 2005, and inactive duty for training (INACDUTRA) from February 2003 to August 2003.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) denying an increased rating in excess of 30 percent for PTSD. An interim November 2013 rating decision increased the Veteran's rating to 50 percent disabling, effective August 31, 2010. In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record.

Although the RO determined that the Veteran initially filed his claim on August 31, 2010, the claim dates back to August 27, 2008. New and material evidence, specifically a March 2010 VA PTSD examination, was associated with the file within one year of the RO's September 2009 rating decision granting service connection for PTSD at 10 percent disabling. Thereafter, new and material evidence, specifically an October 2010 VA PTSD examination, was associated with the file within one year of the RO's May 2010 rating decision partially granting an increased rating for PTSD. Accordingly, the claim dates back to the date of the Veteran's initial request for service connection, which is August 27, 2008. See 38 C.F.R. § 3.156(b) (2017).

The Veteran has attributed several periods of unemployment as due to his PTSD. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue on the title page.

Lastly, the Board notes that the Veteran requested VA to expedite his claim due to financial hardship in July 2009. At this time, the Veteran's motion is denied because sufficient evidence of severe financial hardship has not been submitted. However, the Veteran is encouraged to submit additional evidence demonstrating severe financial hardship, such as bankruptcy or home foreclosure notice, and resubmit his request at any time.

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


REMAND

The Veteran underwent a VA PTSD examination in July 2017. The AOJ last adjudicated the Veteran's claim in a December 2013 statement of the case (SOC). Unfortunately, because the VA PTSD examination was not submitted by the Veteran and instead generated by VA, a presumed waiver pursuant to 38 U.S.C. § 7105(e)(1) does not apply. As a result, remand is necessary so the AOJ can issue a supplemental statement of the case (SSOC) considering all the evidence of record associated with the file after the December 2013 SOC. See 38 C.F.R. § 20.1304(c).

The matter of entitlement to TDIU is inextricably intertwined with the Veteran's PTSD claim; accordingly, it must be remanded as well.

Because the claims are being remanded, updated VA treatment records should be associated with the file.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's PTSD from June 2015 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his PTSD are associated with the record.

2. The AOJ should then review the record and re-adjudicate the claims. If they remain denied, the AOJ should issue an appropriate SSOC and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review.

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



_________________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals

Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claims. 38 C.F.R. § 20.1100(b) (2017).