Citation Nr: 1761175
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-10 299 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUES

1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from October 20, 2003, to June 12, 2006.

2. Entitlement to a total rating by reason of individual unemployability (TDIU) prior to June 13, 2006.

REPRESENTATION

Appellant represented by: Polly Murphy, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from March 1966 to February 1967.

This case comes to the Board of Veterans’ Appeals (Board) on appeal of rating decisions of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA).

In August 2010, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file.

The case was remanded by the Board in December 2010, so that an intertwined issue could be adjudicated, in May 2013 for further development of the evidence, and in March 2016, so the Veteran could be afforded the opportunity for another hearing on appeal on the additional issues that had been certified subsequent to the August 2010 Board hearing. These were accomplished, with the Veteran’s representative withdrawing the request for an additional hearing in correspondence received in July 2016.

The case was returned for further appellate consideration and in a November 2016 decision, an effective date of October 31, 2000 for the award of service connection for PTSD was established. That decision also denied an increased rating for partial paralysis of the left lower radicular group and TDIU prior to June 13, 2006. The Veteran appealed the Board’s decision that the Veteran did not appeal the November 2012 rating decision’s assignment of a 50 percent rating for PTSD and the denial of TDIU prior to June 13, 2006, to the United States Court of Appeals for Veterans Claims (Court), and the Board’s decision was vacated pursuant to an August 2017 order, following a Joint Motion for Partial Remand (JMPR). The parties requested that the issue of entitlement to an initial rating in excess of 50 percent for PTSD be developed for appellate consideration and that an additional opinion be obtained for the matter of entitlement to TDIU prior to June 13, 2006, relating to the Veteran’s ability to maintain employment. The Court granted the JMPR and remanded the case to the Board

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part.

REMAND

As noted, the August 2017 JMPR included instructions for the Board to obtain a medical opinion regarding whether the Veteran’s service-connected disabilities affected his ability to maintain or retain substantially gainful employment from October 31, 2000, to June 12, 2006. A statement of the case (SOC) must also be issued on the matter of entitlement to an initial rating in excess of 50 percent for PTSD from October 20, 2003, to June 12, 2006.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should issue a SOC on the issue of entitlement to an initial rating in excess of 50 percent for PTSD from October 20, 2003, to June 12, 2006. The Veteran and his attorney should be appropriately advised that a timely substantive appeal must be filed in order to secure Board review of this claim.

2. The AOJ should arrange for the Veteran’s claims folder to be reviewed by a VA examiner who should be requested to render an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities rendered him unable to obtain or retain substantially gainful employment prior to June 13. 2006. The claims folder must be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached.

3. Thereafter, the AOJ should readjudicate the TDIU issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. They should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review.

The appellant 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).

_________________________________________________
BARBARA B. COPELAND
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).

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