Citation Nr: 1802159 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-15 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial grant of a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel INTRODUCTION The Veteran had active service in the Army from January 1968 to October 1969, during which he saw combat in Vietnam. The Board wishes to recognize the Veteran's courageous and honorable service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that granted an increase from 30 percent to 50 percent for the Veteran's service-connected PTSD. The Veteran timely appealed. The Veteran testified at an August 2017 Board hearing. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) for further development and readjudication. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is needed before the issues on appeal can be decided. PTSD When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). At his August 2017 Board hearing, the Veteran testified that his PTSD had worsened substantially since his prior VA examination, which was in April 2012. Board Hearing Tr. at 9, 14-15. The Veteran's substantive appeal and medical treatment records also show that his symptoms may have worsened since that examination, which is now more than five years old. Remand is thus required to provide the Veteran with a new VA examination to assess the current level of his symptomatology. TDIU At his Board hearing, the Veteran noted that he retired from his job as a police officer in 2006 in part as a result of his PTSD symptoms, and he did not believe he would be able to hold a full-time job due to his worsening symptoms. Board Hearing Tr. at 12-14. The Board finds that a claim of entitlement to TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather is part of a claim for increased compensation). Under Rice, the Board has jurisdiction over the Veteran's TDIU claim and, for the purpose of clarity, has separately captioned the issue on the first page of this decision. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with the issues of entitlement to an increased rating for his PTSD, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) The Board further notes that in April 2013 the Veteran requested that VA provide him a copy of his claims file. Yet the Veteran's claims file contains no indication that VA has provided him the requested records. Because the claims herein are being remanded, there is no prejudice to the Veteran in referring his Privacy Act request to the AOJ for appropriate action. Thus, on remand, the AOJ must provide the Veteran with a copy of his claims file pursuant to the April 2013 request, in accordance with the procedures for complying with a Privacy Act request. The AOJ is reminded that the Veteran's claim is entitled to expeditious treatment, and his records request has now been pending for more than four years. Accordingly, the case is REMANDED for the following action: 1. Pursuant to his April 2013 records request, and in accordance with the procedures for complying with a Privacy Act request, provide the Veteran a copy of his claims file. Concurrent with the process of obtaining and providing the Veteran his claims file, proceed to implement the following remand instructions; do not delay implementing any of the following instructions while waiting to provide the Veteran his claims file. 2. Undertake appropriate efforts to obtain any outstanding VA and private medical records and associate them with the claims file. 3. Following completion of instruction 2 above, afford the Veteran a VA examination to determine the current severity of his service-connected PTSD. The claims folder should be made available to the examiner for review prior to the examination, and the examiner should acknowledge such review in the examination report. A complete rationale must be given for all opinions and conclusions expressed. The examiner must specifically comment on the functional effects of the Veteran's PTSD. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 4. Readjudicate the claim for an increased rating for PTSD and the claim for entitlement to a TDIU in light of all of the evidence of record. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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). _________________________________________________ CAROLINE B. FLEMING 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).