Citation Nr: 18156820 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 10-00 407A DATE: December 11, 2018 ORDER The July 14, 2017 Board decision denying entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) from May 6, 2003 to April 19, 2005, in excess of 30 percent from April 20, 2005 to September 16, 2007, in excess of 50 percent from September 2017 to September 14, 2015, and in excess of 70 percent thereafter is vacated. The July 14, 2017 Board decision denying a total disability based on individual unemployability due to service-connected disabilities (TDIU) is vacated. REMANDED Entitlement to an initial evaluation in excess of 10 percent for PTSD from May 6, 2003 to April 19, 2005, in excess of 30 percent from April 20, 2005 to September 16, 2007, in excess of 50 percent from September 2017 to September 14, 2015, and in excess of 70 percent thereafter is remanded. Entitlement to a TDIU is remanded.   ORDER TO VACATE The Veteran served on active duty from December 1964 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2003 rating decision. In a November 2009 rating decision, the agency of original jurisdiction (AOJ) granted an increased rating for PTSD with an evaluation of 10 percent effective May 6, 2003, an evaluation of 30 percent from April 20, 2005, and an evaluation of 50 percent from September 16, 2007 thereafter. In an April 2017 rating decision, the AOJ granted an increased rating for PTSD with an evaluation of 70 percent effective September 15, 2015. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not “abrogate the pending appeal.” AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, as the Veteran did not receive the maximum increase available, the issue remains on appeal and the Board has characterized the issue accordingly. In July 2017, the Board denied the claim for entitlement to an initial evaluation in excess of 10 percent for PTSD from May 6, 2003 to April 19, 2005, in excess of 30 percent from April 20, 2005 to September 16, 2007, in excess of 50 percent from September 2017 to September 14, 2015, and in excess of 70 percent and a TDIU. Vacatur of the July 2017 Board Decision In September 2017, the Veteran’s attorney submitted a Motion for Reconsideration of those portions of the Board’s July 2017 decision which denied entitlement to an initial evaluation in excess of 10 percent for PTSD from May 6, 2003 to April 19, 2005, in excess of 30 percent from April 20, 2005 to September 16, 2007, in excess of 50 percent from September 17, 2007 to September 14, 2015, and in excess of 70 percent thereafter and a TDIU. The Veteran contends that he now resides in Thailand and that he was not notified of the examination. A review of the record indicates an April 2017 internal note scheduling the Veteran for an examination in May 2017. The record shows there was no examination notification letter, a report of contact regarding the May 2017 examination, or any documentation noting when examinations was scheduled. The Department of Veterans Affairs (VA) does not necessarily save examination notification letters or reports of contact in the record, and therefore their absence is not dispositive that the Veteran was not notified. However, the short time-frame between the internal VA examination request date and examination date, in conjunction with the absence of any scheduling documentation, lends credibility to Veteran’s contentions. Therefore, the Board finds that the Veteran did not receive notification for his May 2017 VA examination. The Board may vacate an appellate decision at any time upon request of the Veteran or on the Board’s own motion where the Veteran has been denied due process of law. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. In reviewing the July 2017 Board decision, the Board relied on the Veteran’s failure to appear to his May 2017 VA examination in its denial for increase ratings for his PTSD and a TDIU. As such represents a denial of due process to the Veteran, the July 2017 Board decision denying an initial evaluation in excess of 10 percent for PTSD from May 6, 2003 to April 19, 2005, in excess of 30 percent from April 20, 2005 to September 16, 2007, in excess of 50 percent from September 17, 2007 to September 14, 2015, and in excess of 70 percent thereafter and a TDIU is vacated. 38 C.F.R. § 20.904. REASONS FOR REMAND Entitlement to an initial evaluation in excess of 10 percent for PTSD from May 6, 2003 to April 19, 2005, in excess of 30 percent from April 20, 2005 to September 16, 2007, in excess of 50 percent from September 2017 to September 14, 2015, and in excess of 70 percent thereafter and entitlement to a TDIU. As the Board noted above, the July 2017 Board decision denying the Veteran’s claim for an increased disability rating for his PTSD and his TDIU claim have been vacated due to the fact that there is no verification that the Veteran was notified of a VA examination. Therefore, the Board finds that the Veteran must be provide an opportunity to undergo a VA examination to determine the severity of his service-connected PTSD. The Veteran contends that he lives abroad and it may be difficult for him to undergo a VA examination. The Board takes note that the Veteran provided a psychiatric disability benefits questionnaire (DBQ), in September 2017, in lieu of a VA examination. The DBQ indicates that the Veteran’s PTSD symptoms cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood which supports the current 70 percent evaluation under 38 C.F.R. § 4.130 and not necessarily a higher evaluation in light of the remaining evidence of record. Therefore, in order to afford the Veteran every opportunity, the Board finds that a VA examination is warranted. The Board further notes that due to the Veteran’s living situation, it is unclear as to whether it is possible to afford the Veteran a comprehensive non-VA examination in close proximity to his residence or to coordinate the scheduling of an examination in the United States. The Board notes further, that the Veteran has indicated that he received treatment from Drs. P.W., S.J., S.K., P.S., W.K., K.S., and J.B. The record indicates that the AOJ has requested authorization for the Veteran’s private treatment records. The Veteran has not provided authorization to obtain these important records. The Veteran should be provided another opportunity to provide authorization for VA to obtain his private treatment records. Moreover, the Veteran should also be provided another opportunity to submit reports/information from his former employers regarding his past employment which is also absent from the record. The matter is REMANDED for the following action: 1. Provide the Veteran the opportunity to submit reports/information from his former employers regarding his past employment including any work concessions made by his employers due to service-connected disability as well as reasons for termination of such employment. 2. Ask the Veteran to complete a VA Form 21-4142 for Drs. P.W., S.J., S.K., P.S., W.K., K.S., and J.B. Make two requests for the authorized records from the physicians, unless it is clear after the first request that a second request would be futile. 3. Determine whether the Veteran currently (and in the near future) resides in a foreign country or is in the U.S. and available/able to attend a VA psychiatric examination in the U.S. by an appropriate clinician in order to assess the current severity of his service-connected PTSD. If overseas, follow the appropriate VA guidelines for foreign non-VA psychiatric examinations. (Continued on the next page)   The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel