Citation Nr: 1754722 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-04 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent disabling from May 31, 2012, in excess of 70 percent disabling from January 10, 2014 until August 23, 2015, and in excess of 70 percent disabling from October 1, 2015 for posttraumatic stress disorder (PTSD) with acute adjustment disorder with mixed mood and conduct. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: John S. Berry ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 2003 to February 2007, as well as a period of active duty for training (ACDUTRA) from February 2010 to June 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. By way of background, the Board remanded the case for further development in April 2016. In that decision, the Board granted entitlement to service connection for an acute adjustment disorder with mixed mood and conduct, and remanded the increase rating claim for PTSD and TDIU. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a March 2017 rating decision, the RO assigned a temporary 100 percent evaluation effective August 24, 2015, and assigned a 70 percent evaluation effective October 1, 2015. Subsequently, in a June 2017 rating decision, the RO combined the Veteran's service-connected PTSD with his service-connected acute adjustment disorder with mixed mood and conduct. The RO then increased the evaluation to 50 percent effective May 31, 2012, and continued a 70 percent rating effective January 10, 2014. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues have been recharacterized as reflected on the title page. The electronic Veterans Appeals Control and Locator System (VACOLS) indicates that a March 2017 rating decision that denied service connection for a sinus condition, visual disturbances, and assigned a non-compensable rating for traumatic brain injury, is the subject of a Notice of Disagreement (NOD) filed in April 2017. This electronic systems show that the RO is continuing to work on these matters. Thus, as the RO has acknowledged receipt of the NOD and VACOLS indicates that further action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where an NOD had not been recognized. The Board notes that the March 2017 rating decision does not appear to deny a separate service-connection claim for visual disturbance. Nevertheless, as VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in this case. Therefore, those claims remain under the jurisdiction of the RO at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case for the issue 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 Veteran's claim so that the Veteran is afforded every possible consideration. The Board notes that additional evidence has been associated with the claims file since the August 2017 Supplemental Statement of the Case (SSOC). The evidence includes VA treatment records, and multiple August 2017 VA Forms 21-4138. The Veteran has not submitted a waiver of the RO's initial consideration of that evidence, and a subsequent SSOC has not been issued. Moreover, the Board notes that the automatic waiver provision does not apply in this case, as the appeal was certified prior February 2, 2013. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial agency of original jurisdiction (AOJ ) review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). Therefore, on remand, the AOJ should consider that evidence and readjudicate the claim. 38 C.F.R. §§ 19.37, 20.1304 (2017). Regarding the TDIU issue, the Board notes that the issue of entitlement to TDIU is inextricably intertwined with the increased evaluation claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final disposition of the claim for an increased evaluation for PTSD Accordingly, the case is REMANDED for the following action: 1. The case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These 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 (2012). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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).