Citation Nr: 1754922 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-29 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a left foot disability. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In November 2015, the Veteran testified before the undersigned Veterans Law Judge. In April 2016, the Board dismissed the claims pertaining to a right ear condition other than hearing loss, hepatitis C, and tinnitus; granted service connection for PTSD; and remanded the issues of entitlement to service connection for bilateral hearing loss and a left foot disorder. In April 2016, the RO assigned an initial 70 percent rating for PTSD, which the Veteran appealed in November 2016; this issue has been certified to the Board and merged to the present appeal. In March 2017, the Veteran raised the issue of whether he was unemployable due to his service-connected PTSD. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the PTSD claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As to service connection for bilateral hearing loss and a left foot disability, the Board finds that remand is needed to afford the Veteran a VA examination. In its April 2016 remand, the Board requested VA examinations to determine whether the Veteran has a current hearing loss disability for VA compensation purposes and to determine the nature and etiology of the Veteran's current left foot disability. The Board acknowledges that, under applicable law, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655. Here, it appears that the AOJ requested foot and audiology examinations on June 16, 2016, and that such requests were cancelled on July 14, 2016, on the basis that the Veteran failed to report to the examinations. The Veteran contends that he never received notice of the examinations; and the claims file does not include copies of the notification letters. See, e.g., Brief (April 12, 2017). As the claims file does not contain a letter scheduling the Veteran for his examinations, the Board finds that the record is insufficient to determine whether proper notice of the VA examinations was mailed to the Veteran so as to permit the application of 38 C.F.R. § 3.655. See Kyhn v. Shinseki, 716 F.3d 572 (2013). Thus, the Board finds that the claims must be remanded in order for the AOJ to schedule the Veteran for VA examinations. As to an increased rating for PTSD, the Veteran contends that the disorder has worsened since his last VA examination in July 2015. See Statement (March 1, 2017). He reports increased difficulty managing his finances and that he may need a payee. See id. Additionally, the evidence shows that he received in-patient psychiatric treatment from July 6, 2017, to August 22, 2017, and that he is homeless or at risk of becoming homeless. See, e.g., Claim (July 6, 2017). The record also shows that the Veteran applied for VA vocational rehabilitation in August 2017; any records related to a decision on this application are directly relevant to claim for increase on appeal and must be obtained. Finally, the issue of entitlement to a TDIU is remanded as it is inextricably intertwined with the issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA vocational rehabilitation and treatment records from August 2017 to present. 2. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity of his PTSD and the collective impact of his service-connected disabilities (i.e., PTSD and tinnitus) on his ability to work. Provide him a reasonable period of time to submit this evidence. 3. Schedule the Veteran for an examination to determine the nature, onset, and etiology of his left foot disability. A copy of the letter regarding scheduling the examination must be associated with the claims file. The letter regarding the scheduled VA examination should be sent to both the Veteran and representative. Inform the Veteran that failure to appear for an examination as requested without good cause could adversely affect his appeal. After reviewing the claims file, the examiner should opine as to whether it is at least as likely as not that the Veteran's left foot disability had its onset in service, or is otherwise related to service. The examiner is to address the VA treatment records noting callus of the left foot and degenerative joint disease of the first metatarsophalangeal (October 2014). 4. Schedule the Veteran for an examination to determine the severity of the Veteran's bilateral hearing loss. All necessary tests, including an audiological evaluation, must be conducted. A copy of the letter regarding scheduling the examination must be associated with the claims file. The letter regarding the scheduled VA examination should be sent to both the Veteran and representative. Inform the Veteran that failure to appear for an examination as requested without good cause could adversely affect his appeal. 5. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).