Citation Nr: 18160281 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-59 759 DATE: December 26, 2018 REMANDED The appeal as to whether new and material evidence has been received to reopen the Veteran's claim for service connection for post-traumatic stress disorder (PTSD) is remanded. The appeal for entitlement to an increased rating for depression, evaluated as 30 percent prior to October 18, 2016 and 70 percent from that date, is remanded. The appeal for entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran contends his service connected disabilities, in particular his depression, combine to render him unable to obtain and maintain gainful employment. He submitted a separate claim for TDIU that was denied, and which was not appealed to the Board. However, the Board recognizes that a claim for an increased rating encompasses a claim for TDIU if raised by the record or the Veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). As TDIU has been raised, the Board will also consider the matter as part of the current appeal. Additionally, the Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on December 3, 2018. However, the appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Accordingly, the Board will undertake appellate review of the case. New and Material Evidence to Reopen the Veteran's Claim for Service Connection for PTSD The Veteran contends that he has developed PTSD as a result of an attempted sexual assault committed by several other soldiers while he served in the Army in Germany. He states that he did not report this assault or tell anyone of it prior to leaving service, although he does allege he wrote his parents about his hardships in general at that time. The Veteran’s original claim for service connection for PTSD was denied in a July 2005 rating decision. He was notified of this decision and provided with his appellate rights in a July 2005 rating decision but he did not initiate an appeal by submitting a notice of disagreement within the one-year period in which to appeal. Furthermore, new and material evidence was not received within that year. Therefore, the July 2005 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.105(a), 3.156(b) (2018). The regional office (RO) reopened the Veteran’s claim and considered it on a de novo basis. Regardless of RO's actions, a determination as to whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, notwithstanding of the RO's action, and as the Board is not yet convinced there is new and material evidence, it will continue to characterize the issue as whether new and material evidence has been received. Regardless as to whether the claim has been reopened, VA has an obligation to obtain all relevant records that are in federal custody. The record shows that the initial January 2005 request to obtain the Veteran’s entire personnel records was not successful, and it was certified that any further efforts to obtain them would be futile. However, a subsequent request for pages from the personnel file showing unit assignments and possible combat operations in January 2012 resulted in the receipt of six pages of records that were limited in scope to the subject of the request. The Veteran asserts at several places in the record that he received an Article 15 during service. Given that a change in behaviour or performance is evidence that may tend to support the occurrence of a claimed assault, and given that the previous certification that personnel records are not available is obviously no longer valid, the Board finds that an additional attempt must be made to obtain the Veteran’s military personnel records in their entirety and associate them with the claims file. Increased Rating for Depression The evidence shows that the Veteran was hospitalized for his service connected depression in November 2017. The records of this hospitalization have not yet been added to the claims file. Furthermore, while the record includes the report of an October 2016 VA examination of the Veteran’s depression, the most recent VA treatment records are dated August 2016. These records should be obtained and associated with the claims file. Moreover, the mental examination that is to be scheduled should include an assessment of the Veteran’s service connected depression. TDIU As the outcome of the Veteran’s appeals for an increased rating for depression may impact the claim for TDIU, it will be held in abeyance until these two issues can be adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s complete service personnel records and associate them with the claims file. Then, attempt to corroborate the Veteran’s in-service stressors based on personal assault, including the alleged attempted rape by a group of five or six soldiers. If more details are needed, contact the Veteran to request the information. 2. Obtain all VA treatment records pertaining to treatment of the Veteran’s psychiatric disabilities, dating from August 2016 to the present. This should include the report of the November 2017 hospitalization as well as all associated records. 3. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel