Citation Nr: 20004576 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 09-46 278 DATE: January 21, 2020 REMANDED The issue of entitlement to a disability rating in excess of 50 percent, prior to December 3, 2013, for posttraumatic stress disorder (PTSD) is remanded. The issue of entitlement to a disability rating in excess of 70 percent, from December 3, 2013, for PTSD (exclusive of a temporary total (100 percent) hospitalization rating assigned from August 3, 2018 through November 30, 2018 pursuant to 38 C.F.R. § 4.29) is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to May 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal, the Veteran requested a hearing before a Veteran’s Law Judge of the Board. See VA Form 9, Appeal to Board of Veterans’ Appeals, received May 2011. However, in September 2014, the Veteran submitted a statement in support of claim indicating that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704 (e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. In an April 2014 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s PTSD to 70 percent, effective December 3, 2013. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). This case was previously remanded by the Board in July 2015. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. 1. Entitlement to Increased Ratings for PTSD The Veteran contends that he is entitled to a disability rating in excess of 50 percent, prior to December 3, 2013, and an evaluation in excess of 70 percent, from December 3, 2013, for his service-connected PTSD. A November 2019 VAMC report of hospitalization reflects that the Veteran was admitted for bed service to acute psychiatry for depression. Additionally, a December 2019 VAMC report of hospitalization reflects that the Veteran was admitted for bed services to acute psychiatry for, in part, homicidal ideations. However, the most recent VA treatment records in the Veteran’s claims file are from August 2019. The Veteran’s claims file does not contain any VA treatment records related to his November 2019 and December 2019 hospitalizations. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A; Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA records, as well as any other relevant VA and/or private treatment records identified by the Veteran, must be obtained and associated with the record. Additionally, the Veteran was last provided a VA examination relating to his PTSD in October 2018. The December 2019 VAMC report of hospitalization reflects that the Veteran suffered from homicidal ideations. As such, the Veteran’s PTSD may have increased in severity. In light of the Veteran’s hospitalizations, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disability may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 2. Entitlement to a TDIU The claim for a TDIU is inextricably intertwined with the Veteran’s claim for entitlement to higher staged disability ratings for his service-connected PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the provider names, addresses and dates of treatment for all private and VA treatment received for his service-connected PTSD since January 2006, one year prior to the date of receipt of the increased rating claim. Any necessary authorization for release of such documents to VA should be obtained from the Veteran. Attempt to obtain all identified outstanding psychiatric treatment records relevant to the matters being remanded, to include VA treatment reports dated from August 2019, including November 2019 and December 2019 reports of VA psychiatric admissions. The Veteran and his representative must be notified of any inability to obtain identified outstanding medical records. 2. After the above development, schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of his service-connected PTSD. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations and functional impairment related to the Veteran’s service-connected PTSD, to include functional impairment as to occupational activities. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether higher staged ratings for PTSD, and entitlement to a TDIU, may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.