Citation Nr: 1805395 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-36 092 ) 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 30 percent for posttraumatic stress disorder (PTSD) prior to September 20, 2011, and in excess of 50 percent as of that date. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 3. Entitlement to withheld retirement pay. 4. Entitlement to additional compensation for an additional dependent. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the February 2010 rating decision, the RO, in pertinent part, granted service connection for PTSD and assigned a 10 percent rating, effective October 16, 2008. Subsequently, in a December 2014 rating decision, the RO awarded a 30 percent rating, effective October 16, 2008, and a 50 percent rating, effective June 9, 2014. As this does not represent an award of the maximum rating available, the Veteran's claim for a higher initial rating for PTSD remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (in a claim for an increased rating, a veteran is presumed to be seeking the maximum benefit allowable). The November 2014 rating decision denied entitlement to a TDIU. This matter was previously before the Board in October 2015 and remanded for the RO to consider evidence that had been newly associated with the claims file at that time. This matter was again before the Board in June 2016. That decision denied entitlement to a disability rating in excess of 30 percent for PTSD prior to September 20, 2011; granted entitlement to a 50 percent disability rating, but no higher, for PTSD from September 20, 2011; and denied entitlement to TDIU. The Veteran appealed those portions of the June 2016 Board decision that were less than fully favorable to the United States Court of Appeals for Veterans Claims (Veterans Court). The Veterans Court vacated those portions of the June 2016 decision that were less than fully favorable and remanded them to the Board pursuant to a Joint Motion for Remand (JMR). The issues of entitlement to the restoration of retirement pay and additional compensation for an additional dependent are addressed only to the extent permitted by 38 C.F.R. § 19.9(c) (2017). The record shows that the Veteran has filed timely Notices of Disagreement (NODs) regarding those issues and has not yet received Statements of the Case (SOCs). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the Veteran's claims file, the Board finds multiple grounds for remand. First, remand is necessary to ensure that due process is followed. In pertinent part, under 38 C.F.R. § 19.37 (2017), if a Statement of the Case (SOC) is prepared prior to receipt of additional evidence, a Supplemental Statement of the Case (SSOC) must be furnished, as provided in 38 C.F.R. § 19.31 (2017), unless the additional evidence is duplicative or not relevant to the issue on appeal. Here, additional VA treatment records were added to the claims file in the process of developing unrelated claims, and the Veteran's former employer provided additional records regarding his work history into the year 2017. These records document VA treatment providers' opinions regarding the severity of the Veteran's mental health condition and level of disability and are relevant to both his claims for an increased evaluation for PTSD and to a TDIU. However, because this evidence was received after the most recent SSOC in October 2015, it must be submitted to the RO for consideration and an issuance of a new SSOC. The Board notes that, although recent statutory provisions allow for an automatic waiver of initial RO review of post-substantive appeal evidence, that type of evidence must be submitted by the Veteran. See 38 U.S.C. § 7105(e) (2012). Here, the post-substantive appeal evidence was not submitted by the Veteran. Thus the automatic waiver does not apply. In addition to the evidence previously discussed, an opinion from a VA psychiatrist was added to the record in June 2017, possibly, though not certainly, provided by the Veteran. However, even if the Board were to find that the this document was added to the record by the Veteran, the Board could still not review it in the first instance absent a waiver, because the Veteran's claim was received prior to February 2, 2013. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed.Cir. 2003); see also Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C.A. § 7105 to provide for the automatic waiver of AOJ review of evidence submitted directly to the Board during the appeal period for substantive appeals filed after February 2, 2013). Moreover, this opinion documents that the Veteran has both PTSD, for which he is service-connected, and major depression, for which he is not service-connected. Consequently, the Board finds that this opinion presents evidence that the Veteran's condition has changed significantly since October 2014, when the Veteran received his last VA examination. At that time, the Veteran was only diagnosed with PTSD, and no consideration was given to determining whether the Veteran's symptoms were due to his service-connected PTSD condition, his major depression, both, or whether any particular symptoms distinguishing these conditions can be ascertained. Consequently, an additional opinion is necessary to clarify these questions. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A brief review of the VA treatment records provided since the last adjudication by the RO raises similar questions. These records document that VA providers have recently considered the Veteran totally disabled, but do not clearly state whether this opinion is based on the Veteran's service-connected PTSD or his total mental health picture (including his nonservice-connected depression). Documents recently added to the record also reveal that the Veteran is receiving Social Security Administration (SSA) benefits and was at one point in the process of requesting unemployment benefits from the state of North Carolina. As records from these agencies may bear on the Veteran's employment history, medical condition, or both, attempts should be made to develop them on remand. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Finally, with respect to the claims regarding whether the Veteran is entitled to additional compensation due to a dependent or a retirement pay, the Veteran filed timely NODs as to those issues in June 2017 and November 2016 respectively in response to a notice regarding the amount of his award sent in July 2016. The Veteran has not yet been provided with SOCs outlining a responsive decision and advising him of his rights to further appeal in response to either of those NODs. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request the Veteran to either provide or identify to VA and authorize VA to obtain records relevant to the claims on appeal, including records regarding his application for unemployment benefits from the State of North Carolina. 2. Obtain the Veteran's SSA records including the medical evidence used to make a disability eligibility determination. All reasonable efforts to obtain such records should be made and documented. If any records cannot be obtained, a formal finding as to their unavailability should be made and provided to the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Obtain any updated/outstanding VA treatment records that are not already associated with the claims file and are relevant to the claims on appeal and associate the same with the claims file. 4. After the above records development is completed, arrange for an opinion from an appropriate examiner as to the nature and severity of the Veteran's psychiatric conditions. The examiner should state what conditions the Veteran is diagnosed with and state whether it is possible to distinguish symptoms that are the result of the Veteran's service-connected PTSD from symptoms of his nonservice-connected conditions. If this is not possible, the examiner should explain why. If the examiner is able to distinguish symptoms of the Veteran's service-connected PTSD from his nonservice-connected depression (or any other nonservice-connected psychiatric disabilities), the examiner should also render an opinion as to the level of social and occupational impairment caused by the Veteran's PTSD. If the examiner is unable to determine what symptoms are caused by the Veteran's service connected PTSD, as opposed to caused by the Veteran's nonservice-connected psychiatric disabilities, the examiner should provide an opinion as to the level of social and occupational impairment caused by the Veteran's overall mental health disability picture. If the examiner determines that any opinion requested cannot be provided without an additional examination, the Veteran should be scheduled for an appropriate examination. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the provider must (to comply with governing legal guidelines explain why the opinion sought cannot be offered without resort to speculation. 4. Once the development described above has been completed, undertake any further development that may be made necessary as a result. Then, readjudicate the claim on appeal. This readjudication should include a review of all the evidence associated with the claims file since the October 2015 SSOC. To the extent that any benefit sought is denied or less than fully granted, issue a responsive SSOC to the Veteran and his representative and provide the Veteran and his representative the appropriate time to respond. Then, if the file is otherwise in order, return the matters to the Board for additional appellate review. 5. Complete any appropriate development in response to the NODs submitted by the Veteran in November 2016 and June 2017 addressing the issues of the Veteran's entitlement to withheld retirement pay and additional compensation for a dependent. To the extent that the benefits sought by the Veteran are denied or less than fully granted, issue appropriate SOCs advising the Veteran of the reason the benefits were denied or less than fully granted and advising the Veteran of his appellate rights. Thereafter, return the issue to the Board only if an adequate and timely substantive appeal is filed. 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). _________________________________________________ A. ISHIZAWAR 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).