Citation Nr: 1802378 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-01 191 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating in excess of 30 percent for post-traumatic stress disorder (PTSD), previously rated as anxiety reaction with depression. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION The Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1970, during the Vietnam Era. For his service, he received the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. Subsequently, jurisdiction was transferred to the RO in St. Petersburg, Florida. The Board notes the Veteran expressly raised a claim for TDIU in June 2014. See June 2014 Letter from the Veteran's Representative; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). This claim was denied in a February 2015 rating decision. After which, he never filed a notice of disagreement. Nonetheless, the RO adjudicated the issue as though one had been filed by incorporating the issue in its February 2015 Supplemental Statement of the Case (SSOC). See February 2015 SSOC; see also April 2015 SSOC; Percy v. Shinseki, 23 Vet. App. 37, 46-7 (2009). Thereafter, he never perfected the appeal by filing a substantive appeal. See 38 C.F.R. §§ 20.202, 20.302(b) (2017). Nevertheless, he continues to disagree with the disability rating assigned for PTSD, and in a December 2017 Informal Hearing Presentation, his representative asserts he is still seeking TDIU. Given a determination as to whether he is entitled to TDIU is part and parcel of his claim for an increased disability rating for PTSD, the Board finds it retains jurisdiction over this claim. See Rice, supra. In April 2013, the Veteran testified before a Veterans Law Judge (VLJ) at a Board videoconference hearing; a transcript of which has been associated with the claims file. Thereafter, in a May 2016 letter, he was notified the VLJ who conducted the hearing was no longer employed by the Board and given an opportunity to testify before another VLJ. Although he returned a Hearing Option form in June 2016 without selecting a course of action, in an accompanying June 2016 letter he stated he was unable to attend another hearing because he had relocated. As such, the Board finds he has been provided a meaningful opportunity to effectively participate in the processing of this claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). The VA will notify the Veteran if further action is required. REMAND In the December 2017 Informal Hearing Presentation, the Veteran's representative alleged that all of the VA examinations conducted to date were inadequate because they each failed to consider the relevant evidence of record; such as, his N.V.C. treatment records; treatment records pertaining to his other health conditions, which caused additional stress and anxiety; and a June 2011 letter from his former employer, P.P., Industries. Specifically, with respect to the July 2014 PTSD VA Examination Report, his representative additionally claimed it was inadequate because it was internally inconsistent and did not consider his testimony during the April 2013 Board videoconference hearing. Upon review, the Board finds the July 2014 VA examiner did fail to consider and weigh the Veteran's and his wife's lay statements regarding his PTSD symptomatology in his June 2011 letter, her June 2011 Buddy Statement, and their testimonies during the April 2013 Board videoconference hearing. Further, despite acknowledging that he received treatment at the N.V.C., the VA examiner did not consider and weigh the N.V.C. treatment records associated with the claims file at that time. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the July 2014 PTSD VA Examination Report is inadequate and a remand is necessary to obtain another VA examination. With regard to the issue of entitlement to TDIU, the Board finds it is inextricably intertwined with the aforementioned claim because the ultimate resolution of this claim could impact the Board's assessment of the occupational impairment resulting from the combination of his service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009); Anglin v. West, 11 Vet. App. 361, 367 (1998). Consequently, the issue of entitlement to TDIU is also remanded for any additional development necessary in light of the Board's remand directives below. Accordingly, the case is REMANDED for the following action: 1. Undertake all appropriate development necessary to obtain a copy of all VA treatment records dated from May 2010 to the present that are pertinent to these claims, as well as from any private treatment providers identified by him, to include the N.V.C. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current nature and severity of his PTSD. After reviewing the complete record from May 2010 to the present, the examiner should: a. Discuss all relevant medical evidence of record, to include the Veteran's treatment records from the N.V.C., which suggest his PTSD symptomatology has increased in severity during the appeal period. b. Discuss all relevant lay statements of record, to include the May 2011 letter from the Vice President of Human Resources of P.P. Industries bearing on the Veteran's occupational impairment; as well as the June 2011 letter from him, June 2011 Buddy Statement from his wife, and their testimonies during the April 2013 Board videoconference hearing describing his relevant PTSD symptomatology. 3. Once the first and second requests have been completed, to the extent possible, undertake any development deemed necessary with respect to the Veteran's claim for TDIU, which may include obtaining a VA medical opinion regarding the combined effects of his service-connected disabilities on his ability to obtain and maintain physical and/or sedentary employment. 4. Once each of the above requests has been completed, to the extent possible, readjudicate the appeal. 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 remanded by the Board 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). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).