Citation Nr: 1821608 Decision Date: 04/10/18 Archive Date: 04/19/18 DOCKET NO. 09-41 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at three different Board hearings in July 2010, March 2011 and September 2011. Subsequently, the appeal was before a three-judge panel at the Board. See 38 U.S.C. § 7102 (2012); 38 C.F.R. § 20.707 (2017). In July 2011 and April 2012, the Board remanded the case for further development. In October 2017, the Veteran was notified that an Acting Veterans Law Judge (Acting VLJ) who had been on the panel had retired. The Veteran elected to participate in an additional hearing, which was conducted in February 2018. A transcript of all of the hearings is of record. In July 2011 and April 2012, the Board remanded the case for further development. The Board notes that the Veteran, in July 2016, submitted a Notice of Disagreement with an April 2016 rating decision denying service connection for erectile dysfunction as secondary to type II diabetes mellitus. A Decision Review Officer (DRO) letter addressing this claim was furnished to the Veteran in the same month. It is the understanding of the Board that this matter is currently being handled by the RO, and a remand for a Statement of the Case would be premature given the DRO process. But see Manlincon v. West, 12 Vet. App. 238 (1999) (the RO's failure to issue a Statement of the Case in response to a Notice of Disagreement is a procedural defect requiring remand). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran reported at his February 2018 videoconference hearing that he attended group therapy, on a monthly basis, for his PTSD. He noted that he was seeking treatment at the North Little Rock VA Medical Center. He also stated that he took daily medication for his condition. Significantly, he testified that his disability had gotten worse since his last VA PTSD examination in October 2015. A remand is thus in order to obtain all recent VA treatment records and to afford the Veteran a more contemporaneous VA mental health examination. 38 U.S.C. § 5103A(c) (2012); see also Allday v. Brown, 7 Vet. App. 517 (1995); Bell v. Derwinski, 2 Vet. App. 611 (1992). As the Board is remanding the disability evaluation claim for PTSD, the TDIU issue too must be remanded because the matters are inextricably intertwined and must be considered together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Of note, at the Veteran's February 2018 videoconference hearing, he stated that he had been laid off from his job in 2009 but indicated that his PTSD precluded him from seeking further employment. He noted that he had worked as a machinist for a total of 37 years. On remand, an opinion is warranted with a thorough rationale that discusses the effect that the Veteran's service-connected disabilities, to include his PTSD, have on his ability to secure or follow a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from the North Little Rock VA Medical Center dated since September 2016. These must be included in the claims file, if available. 2. Afford the Veteran a VA mental health examination, with a psychiatrist or psychologist, to determine the symptoms and severity of his service-connected PTSD. The electronic claims file must reviewed by the examiner. All necessary tests and studies should be conducted in order to identify the degree of social and occupational impairment attributable to the Veteran's service-connected PTSD. The report of examination should contain a detailed account of all manifestations of the disability found to be present, including all subjective complaints and objective findings. The examiner should also specifically discuss the impact the Veteran's PTSD has on his ability to secure and follow substantially gainful employment without regard to age and nonservice-connected conditions, and with consideration of his education and vocational background. Finally, the examiner should consider the combined occupational effects of the Veteran's PTSD with his physical service-connected disabilities, as listed in a September 2016 rating decision. The examination report must include a complete rationale for all opinions expressed. 3. Finally, readjudicate the issues remaining on appeal, to include the claim for TDIU. If either of the benefits sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative and return the case to the Board. The Veteran 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). ______________________ _________________________ THERESA M. CATINO A. C. MACKENZIE Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _______________________________ MICHAEL J. SKALTSOUNIS 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).