Citation Nr: 1823992 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 09-15 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Veteran also testified at a March 2013 hearing before a different VLJ, who has since retired. Transcripts of both hearings have been associated with the claims file. In July 2013, November 2015, and July 2016 the Board remanded the Veteran's increased rating claim for further development. In February 2017, the Board found that a derivative TDIU claim had been raised by the record as part of his increased rating claim for PTSD. This matter was also remanded at that time for further development. In February 2017, the Board, in pertinent part, granted an increased 70 percent rating, but no higher, for the Veteran's PTSD for the entire appellate period. Subsequently, the Veteran filed an appeal of the Board's decision to the United States Court of Appeals for Veteran Claims (Court). In December 2017, the Court granted the Veteran's and VA General Counsel joint motion for partial remand (JMPR), without disturbing the Board's grant of an increased 70 percent rating, and remanded the case to the Board for further action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Veteran's claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claim so he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). Following the Court order granting the JMPR in December 2017, the Veteran submitted a February 2018 letter which discussed the severity of his PTSD symptomatology. The Veteran also submitted a form requesting a remand of his case to the AOJ for review of this new evidence. The claim must also be remanded to ensure compliance with the directives of the Board's February 2017 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In this regard, the February 2017 remand directed the RO to develop the Veteran's claim of entitlement to a TDIU. Specifically, the RO was directed to send the Veteran a VCAA letter concerning the issue of entitlement to a TDIU and a VA Form 21-8940, as well as to schedule him for an appropriate VA examination. To date, this development has not been completed. Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained and he should be scheduled for a current VA examination of his PTSD. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA letter concerning the issue of entitlement to a total disability rating based on individual unemployability. He should also be provided with and asked to complete and return a VA Form 21-8940, and should specifically be asked to provide a detailed history of his employment and income since June 2008. 2. Make arrangements to obtain the Veteran updated VA treatment records, from February 2018, forward. 3. Thereafter, schedule the Veteran for a VA psychiatric examination to assess the current severity of his service-connected PTSD. The appropriate DBQ should be filled out for this purpose, if possible. The entire claims file and a copy of this REMAND must be made available to the examiner. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be performed and all clinical findings reported in detail. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 4. Schedule the Veteran for an appropriate VA examination to evaluate the issue of entitlement to a TDIU. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history obtained. In conjunction with the examination, the claims folder must be made available to and reviewed by the examiner. Following evaluation of the Veteran, the examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected PTSD, hearing loss, tinnitus, and hypertension and opine as to the impact of the service-connected disabilities, to include in the aggregate, on his ability to secure and follow a substantially gainful occupation. If it is the examiner's opinion that the Veteran's service-connected disabilities do not render him unemployable, the examiner must suggest the type or types of employment in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 5. Finally, after completing any other development that may be indicated, readjudicate the claims on appeal. The Board notes that the Veteran specifically requested initial AOJ review of his February 2018 Correspondence and such should be completed. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ P. M. DILORENZO 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).