Citation Nr: 1807419 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-24 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran had active service from August 1972 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2017, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Regarding the claim for TDIU, this was denied in an April 2015 rating decision. The Veteran filed a notice of disagreement (NOD) with that decision, which was received in April 2016, and a statement of the case (SOC) has not yet been issued. Although the claim for TDIU was developed and adjudicated as separate from the increased rating claim for a psychiatric disorder, and a separate appeal has been initiated by virtue of the April 2016 NOD, the Board notes that a claim for TDIU is part of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has asserted that he is entitled to TDIU, in part because of symptoms attributable to his service-connected psychiatric disorder, which is on appeal, the issue of entitlement to TDIU is within the jurisdiction of the Board. Regarding the remaining issues for which the Agency of Original Jurisdiction (AOJ) issued a decision in April 2015 and the Veteran filed a the April 2016 NOD, the RO responded by acknowledging receipt of the NOD and indicating that a Statement of the Case (SOC) would be forthcoming. As the NOD was acknowledged, a Remand to have the AOJ issue a SOC is deemed unnecessary. Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The U. S. Court of Appeals for Veterans Claims has held that if a veteran claims a disability is worse than when originally rated, VA must provide a new examination when the available evidence is too old to adequately evaluate the current state of the condition. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). During the July 2017 Board hearing, the Veteran explicitly stated that his psychiatric symptoms have worsened since the October 2017 VA examination that was over three years ago. A remand for a new examination is thus 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, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). Also, because the remanded issue of entitlement to an increased rating for a psychiatric disorder, to include PTSD, will have an impact on the Veteran's TDIU claim, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, the issue of entitlement to TDIU is also remanded. The Veteran also submitted a statement indicating that he continues to be treated at the Tuscaloosa VA Medical Center (VAMC). Upon remand, any outstanding VA treatment records should also be obtained. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's claims file his VA treatment records dated from December 2014 to the present. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. 2. Then, schedule the Veteran for a VA examination(s) with the appropriate medical personnel to determine the severity of his service-connected psychiatric disorder, to include PTSD. The entire record should be made available to and reviewed by the examiner. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner should comment on the functional effect of the Veteran's service-connected disabilities, individually and collectively, on his ability to engage in any type of full-time employment, including any form of sedentary work. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so. 3. Thereafter, and after completing any other development deemed necessary, the AOJ should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a Supplemental Statement of the Case and given an opportunity to respond prior to returning the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. PARAKKAL 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).