Citation Nr: 1736658 Decision Date: 08/31/17 Archive Date: 09/06/17 DOCKET NO. 11-30 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating for post-traumatic stress disorder (PTSD) in excess of 30 percent prior to January 25, 2013, and in excess of 50 percent as of July 22, 2015. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1944 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2016, the Board denied the Veteran a rating an excess of 30 percent for PTSD for the period prior to January 25, 2013, and granted the Veteran an increased rating of 50 percent effective January 25, 2013. The Veteran appealed the Board's denial of a rating in excess of 30 percent for the period prior to January 25, 2013, and in excess of 50 percent as of July 22, 2015, to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA's Office of the General Counsel. The Court's order remanded the matter for action consistent with the terms of the JMPR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016); 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The parties to the June 2017 JMPR agreed that the Board failed to provide adequate reasons and bases in support of its October 2016 decision when it failed to (1) address evidence that supported an earlier effective date for the increased PTSD rating; (2) address the Veteran's thoughts of suicide that were noted during the July 2015 VA examination; and (3) consider the adequacy of the July 2015 VA examination given the examiner's failure to review relevant treatment records in the Veteran's electronic claims file. The parties also agreed that the Board erroneously found that the issue of TDIU was not raised by the record. In an August 2017 Informal Hearing Presentation, the Veteran contended that VA failed to satisfy its duty to assist when it failed to obtain VA and private treatment records. Specifically, the Veteran noted that VA treatment records from November 2010 to October 2012, as well as private treatment records from Dr. H and Dr. W, were not part of the claims file. Accordingly, on remand, the AOJ must attempt to secure these records, and any other records identified by the Veteran, that pertain to past treatment for PTSD. On remand, the AOJ should also obtain an opinion that addresses the level of severity of the Veteran's PTSD during the two stages that remain on appeal-prior to January 25, 2013 and as of July 22, 2015. The opinion should address the Veteran's documented medical history and assertions, and also describe the severity, frequency, duration and any resulting functional impairment of his PTSD symptoms. The AOJ should also provide the Veteran with an opportunity to provide relevant information in support of his claim of entitlement to TDIU, including complete employment and education history. The Veteran should also be scheduled for a VA examination to determine the collective impact of the Veteran's service-connected disabilities on his ability to work. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a duty-to-assist letter pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation as to what information or evidence is needed to substantiate his TDIU claim, as well as VA Form 21-8940. 2. Contact the Veteran and ask him to provide a signed release of information for any outstanding private PTSD treatment records, including for Dr. H and Dr. W. If the Veteran returns completed releases, the AOJ should obtain these records and associate them with the claims file. 3. Obtain all VA treatment records from November 2010 to October 2012 and associate them with the claims file. All updated treatment records, to include any records from the Washington VA Medical Center from February 2016 to the present, should also be obtained and associated with the claims file. 4. After all outstanding records have been associated with the claims file, the Veteran should be scheduled for an examination from an appropriate examiner to obtain a medical opinion that addresses the severity of the Veteran's PTSD prior to January 25, 2013 and as of July 22, 2015. The examiner must review the electronic claims file and note that review in the report. The examiner should opine as to the level of severity, frequency and duration of the Veteran's PTSD symptoms as well as the functional impact of such symptoms. If the examiner is unable to differentiate between symptomatology due to PTSD and due to nonservice-connected disabilities, the examiner should so state. The examination report must include a discussion of the Veteran's documented medical history and assertions. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 5. After completing the above actions, the Veteran should be scheduled for a VA examination with an appropriate examiner to ascertain the collective impact of the Veteran's service-connected disabilities (PTSD, hearing loss and tinnitus) on his ability to work. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should elicit and set forth the pertinent facts regarding the Veteran's medical, education and employment history; day-to-day functioning; and, industrial capacity. The examiner should address the Veteran's current ability to function in an occupational environment. If the Veteran is felt to be capable of work despite the service-connected disabilities, the examiner should indicate what type of work the Veteran is capable of as well as any accommodations that would be necessary due to service-connected disabilities. 6. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for an appellate decision. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).