Citation Nr: 21072892 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-01 886 DATE: December 6, 2021 REMANDED Entitlement to an increased initial rating for the grant of service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 5, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to December 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Veteran submitted his claim of service-connection for PTSD in May 2011. The RO issued a rating decision November 2011 granting service connection with an evaluation of 30 percent, effective May 20, 2011. In June 2012, the Veteran submitted a claim for an increased rating for PTSD. A rating decision of August 2012 granted an increased rating of 70 percent for PTSD. In September 2012, the Veteran submitted a notice of disagreement to the 70 percent rating. The RO did not issue a rating decision or statement of the case related to the September 2012 notice of disagreement. The Veteran then submitted a claim for an increased rating for PTSD in June 2013. By a September 2013 rating decision, the RO continued the 70 percent PTSD rating. The Veteran submitted new evidence regarding his PTSD in April 2014. See April 2014 Private PTSD Disability Benefits Questionnaire. The RO recognized this new evidence as a new claim and issued a rating decision in March 2015 continuing the evaluation of 70 percent for PTSD. The Veteran submitted a notice of disagreement in November 2015. In December 2016, the RO issued a supplement statement of the case continuing the 70 percent rating. The Veteran submitted his substantive appeal (VA Form 9) in January 2017, and he requested a Board hearing by live videoconference. Hearings before a Veterans Law Judge were scheduled for October 18, 2019, July 7, 2021, and September 13, 2021. However, the Veteran did not show for any of the scheduled hearings. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(d). The Board finds that the Veteran's appeal is an appeal of the November 2011 initial rating for his PTSD, rather than an appeal of a later claimed increased rating. The Veteran's claim for an increased rating was received in June 2012. That claim, received within one year of the November 2011 rating decision granting service connection, can reasonably be construed as a notice of disagreement with the initial assigned rating. See 38 C.F.R. § 20.201 (2016) (a notice of disagreement does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a notice of disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). As such, the Board finds that the November 2011 rating decision never became final. See 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.1103 (2016). Furthermore, the Veteran continued his disagreement with the rating for his PTSD after the grant of an increased rating to 70 percent in August 2012, both by submitting a notice of disagreement and an increased rating claim, each within one year from the issuance of the August 2012 rating decision. Therefore, the August 2012 rating decision did not become final. Moreover, following the September 2013 rating decision the Veteran submitted new evidence within one year of the decision and the RO adjudicated an increased rating claim, issuing a new rating decision in March 2015. As such, the September 2013 rating decision never became final and the RO's March 2015 adjudication was an adjudication of a pending claim, going back to the initial rating. The Veteran submitted a notice of disagreement to the March 2015 decision and has submitted his substantive appeal in response to the December 2016 statement of the case. Since the Veteran has disagreed with the initial rating assigned and continued to disagree with such, the Board has recharacterized the issue on appeal as one for an increased initial rating for PTSD, as reflected on the title page of this decision. Therefore, it must be considered whether the Veteran is entitled to an increased rating from May 20, 2011, the date of his claim for service-connection for PTSD, as well as any applicable staged ratings throughout the appeal period. The Veteran contends that he has had PTSD since the early 1990's, which has resulted in the loss of his business, wife, home, and much more. Based upon his review of the General Rating Formula for Mental Disorders, he believes that the 100 percent criteria are most applicable to his disability. The Veteran has also indicated that he has not worked since 2009 due to his service-connected mental and physical disabilities. In a May 2018 RO rating decision, the Veteran was granted a TDIU effective April 5, 2017. However, the matter of TDIU has been raised in connection with his claim for an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Veteran's entitlement to a TDIU could extend back to May 20, 2011, the date of his claim for service-connection for PTSD. 1. Entitlement to an increased initial rating for the grant of service connection for PTSD is remanded 2. Entitlement to a TDIU prior to April 5, 2017 is remanded The Most recent VA mental disorders examination was held in April 2018, nearly 4 years ago. As such, the Veteran, through his representative, has specifically requested that he be afforded a new VA mental disorders examination. See November 2021 Appellate Brief. The Veteran is entitled to a current VA mental disorders examination to assess his current level of disability. 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); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board also notes that since the December 2016 statement of the case was issued, additional VA and private medical evidence has been associated with the case file. The Veteran has not provided a waiver of RO review of this evidence, and has indeed specifically asked that the appeal be remanded for review by the RO. See November 2021 Appellate Brief. Thus, these records should be considered on remand by the RO. As the Veteran's TDIU claim is inextricably intertwined with the claim on appeal that has been remanded, the claim for a TDIU must also be remanded. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Upon remand, the Veteran should be afforded a VA examination(s) considering the functional impairment of his service-connected disabilities going back to May 2011. Accordingly, remand is warranted for further development. The matters are REMANDED for the following action: 1. Associate with the case file any outstanding relevant VA and private treatment records. 2. Schedule the Veteran for a VA mental disorders examination to determine the current severity and manifestations of his service-connected PTSD. The claims file must be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's PTSD under the rating criteria. The examiner must attempt to elicit information as to the severity, frequency, and duration of all symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD. The examiner is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. A complete rationale should be given for all opinions and conclusions expressed. 3. Obtain an opinion from an appropriate VA examiner to address what functional impairment the Veteran's service-connected disabilities have on his ability to secure or follow gainful occupation from May 2011 to April 2017. The claims file must be made available to and reviewed by the examiner. The examiner is asked to comment on and describe the functional impairment caused solely by the service-connected disabilities as it pertains to the Veteran's ability to function in an occupational environment from May 2011 to April 2017. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on such work activities as interacting with customers/coworkers and using technology, plus other such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling for up to eight hours per day. 4. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.