Citation Nr: 1804598 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-13 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Whether there was clear and unmistakable error (CUE) in a July 2005 rating decision that denied service connection for PTSD. 3. Entitlement to an effective date earlier than August 9, 2010, for the grant of service connection for PTSD. 4. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1970, including service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that, in pertinent part, granted service connection for PTSD and assigned an initial 70 percent disability rating, effective August 9, 2010. In March 2016, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The Veteran testified before the undersigned at a September 2016 Video Conference hearing. The hearing transcript is of record. During the hearing, the Veteran raised a claim of clear and unmistakable error (CUE) in the July 2005 rating decision that denied service connection for PTSD. The Veteran has raised an inextricably intertwined issue with the claim for an earlier effective date for the award of service connection for PTSD, which has not been addressed by the agency of original jurisdiction (AOJ). Both must be addressed together on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required on his part. REMAND Earlier Effective Date/CUE In March 2005, the RO received the Veteran's initial claim for service connection for PTSD. The claim was denied in a July 2005 rating decision, due to the lack of a confirmed diagnosis of PTSD. The Veteran did not file an appeal and the decision became final. On August 9, 2010, VA received the Veteran's petition to reopen his claim for service connection for PTSD. In an October 2011 rating decision, service connection for PTSD was granted, effective August 9, 2010, the date the Veteran's request to reopen his claim of entitlement to service connection for PTSD was received. The Veteran appealed this decision, asserting that the effective date for his PTSD should be March 31, 2005, the date he filed his original claim for service connection for PTSD, as he was first diagnosed with PTSD in 2005. See October 2012 notice of disagreement, May 2013 VA Form 9, September 2015 Statement of Accredited Representative in Appealed Case, and January 2016 Appellant's Brief. As noted above, during the June 2016 Board hearing, the Veteran's representative raised the issue of whether there was CUE in the July 2005 rating decision that denied service connection for PTSD. The RO has not yet adjudicated the recently raised CUE issue. The Board finds that the Veteran's claim for an effective date prior to August 9, 2010, for the award of service connection for PTSD, and his claim with regard to CUE in the July 2005 rating decision are inextricably intertwined, since the CUE claim is attacking the finality of a prior final rating decision. Therefore, the issue of an earlier effective date must be held in abeyance and remanded to the RO to be addressed after initial adjudication of the CUE claim. See Harris, supra. Increased Rating for PTSD & TDIU The most recent VA examination in connection with the Veteran's service-connected PTSD was conducted over six years ago, in June 2011. The Veteran has reported that his disability has increased in severity since that time. See January 2016 Appellant's Brief and September 2016 Video Conference hearing transcript. Given the Veteran's reports of increased symptomatology, as well as the length of time since the last VA examination, a new VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). It was also alleged at the September 2016 Video Conference hearing as well as in a September 2015 Statement of Accredited Representative in Appealed Case that the Veteran is unable to work due to his service-connected PTSD. In this case, the issue of entitlement to a TDIU rating has been raised by the record and is within the jurisdiction of the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, it is inextricably intertwined with the increased rating claim that is being remanded and must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. After completing the above, the RO should adjudicate the issue of CUE in the July 2005 rating decision that denied service connection for PTSD. If denied, this matter should be forwarded to the Board only if the Veteran files a timely notice of disagreement and, following issuance of a statement of the case, the appeal is perfected by the filing of a timely substantive appeal. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD. The claims folder, including a copy of this Remand, must be made available to the examiner in conjunction with the examination. A notation to the effect that this record review took place should be included in the examination report. All indicated studies should be performed. The examiner should specifically provide the following: (a) The examiner should identify the existence and severity of all current manifestations of the Veteran's service-connected PTSD. (b) The examiner should describe the impact of the Veteran's PTSD on his occupational and social functioning. He/she should comment on functional impairment caused solely by the service-connected PTSD, relative to the Veteran's ability to secure or follow a substantially gainful occupation. If the Veteran is felt able to work, the examiner should state what type of work and what, if any, accommodations would be needed due to his service-connected PTSD. A complete rationale should be given for all opinions and conclusions expressed. 4. After ensuring compliance with the instructions above and undertaking any additional development deemed necessary, readjudicate the claims remaining on appeal, to include entitlement to an initial rating in excess of 70 percent for PTSD, entitlement to a TDIU, and if necessary, entitlement to an earlier effective date for the grant of service connection for PTSD. If any benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case, and allow the appropriate period of time for response. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ BARBARA B. COPELAND 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).