Citation Nr: 20007269 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-47 131 DATE: January 28, 2020 REMANDED Entitlement to an increased initial rating for traumatic brain injury (TBI) is remanded. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2008 to November 2012. The Veteran filed a claim for service connection for PTSD and for TBI in September 2014. Both claims were granted by way of an April 2015 rating decision. An initial 30 percent rating was assigned for PTSD and an initial noncompensable rating was assigned for TBI. The Veteran appealed both assigned ratings. In March 2016, a rating decision was issued assigning a temporary evaluation of 100 percent for the PTSD due to hospitalization, effective November 2, 2015. The 30 percent evaluation resumed as of January 1, 2016. In July 2016, a rating decision was issued awarding a 10 percent rating for TBI, effective July 19, 2016. A September 2017 rating decision was then issued awarding a 70 percent rating for PTSD, effective September 15, 2016. The Veteran has not indicated satisfaction with any of the increased ratings assigned and they do not represent the maximum ratings available for either TBI, or PTSD (but for the period of the temporary total evaluation). The ratings for these disabilities, therefore, remain on appeal. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Thus, the matters before the Board include whether an initial compensable rating prior to July 19, 2016, and a rating in excess of 10 percent thereafter, is warranted for TBI; and whether a rating in excess of 30 percent prior to November 2, 2015, in excess of 30 percent from January 1, 2016 to September 14, 2016, and in excess of 70 percent from September 15, 2016 to the present is warranted for PTSD. The Veteran was afforded a hearing in June 2019 before the undersigned. At the hearing, he reported being evaluated for his TBI at the Syracuse VA healthcare facility by T.P. on May 2, 2019 and that this clinician wrote him a referral to be treated for his PTSD. The Veteran suggested that the May 2019 evaluation provided a more accurate picture of his TBI than the most recent VA examination report. A review of the Veteran’s claims file reveals that VA clinical records were added to the file in January 2019, which cover the period from February 2013 to January 2018, and from October 15, 2018 to November 20, 2018. More recently, in January 2020, VA clinical records were added to the file dating between December 3, 2018 and May 6, 2019, however, these records were limited to attempts to schedule the Veteran for a psychiatry appointment. These records indeed show these requests being made at the request of T.P. Thus, this corroborates the Veteran’s testimony suggesting he was evaluated by T.P. in May 2019 and psychiatric care was recommended. However, there are no general clinical records within the claims file since January 2018, but for the records in October and November 2018. The Board finds remand is necessary in order to have the relevant, nonduplicative VA clinical records dating since January 2018 associated with the claims file, to include the May 2, 2019 evaluation by T.P. 38 C.F.R. § 3.159(c)(2) (2019). Moreover, in September 2017, the Regional Office issued a supplemental statement of the case (SSOC) related to the issues on appeal. The evidence listed for review at that time included VA treatment records dated through February 22, 2017. Since that time, the AOJ has developed the evidentiary record, to include obtaining October 2017 and January 2018 VA examinations for the Veteran’s PTSD and adding the VA treatment records discussed above, which are dated in 2018 and 2019. The issues on appeal were not readjudicated by the AOJ following the addition of these records to the file. In December 2019, the Board wrote the Veteran a letter asking if he wished to waive initial consideration by the RO of this evidence. The Veteran’s representative was copied. The letter indicated that if no response was received, the Board would assume the Veteran does not waive initial RO consideration. To date, no response has been received. Thus, these issues must be remanded for such consideration. See 38 C.F.R. § 20.1304 (2019). The matters are REMANDED for the following action: 1. Obtain the Veteran’s non-duplicative VA treatment records related to his PTSD and his TBI for the period from January 2018 to the present. These records should include, but not be limited to, the May 2, 2019 evaluation by T.P. referenced at the Veteran’s Board hearing. 2. After completing the above action, to include 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 claims should be readjudicated based on the entirety of the evidence, to include consideration of all evidence added to the claims file since the September 2017 supplemental statement of the case. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.