Citation Nr: 20037083 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 16-44 147 DATE: June 1, 2020 REMANDED Entitlement to a disability rating in excess of 30 percent prior to January 15, 2013 and in excess of 70 percent thereafter for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to non-service-connected disability pension benefits is remanded. REASONS FOR REMAND The Veteran had active military service from February 2004 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s April 2012 ratingdecision that granted service connection for PTSD evaluated as 30 percent disabling effective April 25, 2011 but denied entitlement to a TDIU and non-service-connected disability pension. In a July 2016 rating decision, the RO granted an increased rating to 70 percent for the Veteran’s service-connected PTSD effective January 15, 2013. The Veteran testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge in March 2020. A transcript of this hearing is associated with the claims file. The Board notes that the Veteran’s representative did not appear at the hearing and had submitted a statement in January 2020 advising the RO he would not appear because he had been unable to contact the Veteran. At the hearing, the Veteran waived his representative’s presence and chose to proceed without his presence. The Veteran expressed his desire to revoke his representative’s power of attorney. He was advised that, in order to do so, he must submit a formal request in writing. However, to date, no such request has been received by the Board. Therefore, the Board has continued to list the Veteran’s representative on this decision. 1. Entitlement to a disability rating in excess of 30 percent prior to January 15, 2013 and in excess of 70 percent thereafter for service-connected PTSD is remanded. Unfortunately, the Board finds that remand is warranted for further evidentiary development. Based on the Veteran’s statements in the record, it appears there are more treatment records, both VA and non-VA, that have not been obtained that may be relevant to his claim. A December 2011 Social Worker’s note indicates that the Veteran was currently receiving substance abuse/residential services at a private facility (Wilber D. Mills) and was referred to the Drop-In Center by this facility and the Little Rock VA for housing assistance as he expected to be homeless after completion of the substance abuse program he was in. He also reported that he was arrested in October 2011 and jailed for one month before going directly into the substance abuse treatment program upon his release. It was noted that, although he had no mental health concerns at the time, he reported being assessed while in prison for PTSD. The Board notes that service connection for PTSD was established as of April 25, 2011. Therefore, this treatment note indicates that there are private treatment records potentially relating to the Veteran’s mental health status during the appeal period that are not a part of the current record. Such should be sought on remand. In addition, at an April 2016 VA examination, the Veteran reported he received mental health treatment at VA but discontinued it in 2014. At the recent hearing, he also testified that he received mental health treatment at the VA in Branson and at Fayetteville in Arkansas for approximately three years. He also stated he received treatment at the VA in Bonham, Texas. The available VA treatment records cover only a short period of time, no more than three months, from 2011 to 2017 with large periods of time missing. Moreover, there are no mental health treatment records among the VA treatment records in the claims file. Therefore, the Veteran’s complete VA treatment records need to be obtained on remand to ensure no records of mental health treatment received by the Veteran are overlooked. 2. Entitlement to a TDIU is remanded. The Veteran is seeking entitlement to a TDIU due to his service-connected PTSD. He listed four previous employers for whom he worked from February 2012 to December 2015 on his VA Form 21-8940. In November 2017, the RO sent letters to each of the Veteran’s prior employers asking them to complete and return VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits and received responses from two of them by the end of the month. As for the other two, the November 2017 letter to Homey Hearth Bakery and Deli was returned and undeliverable. The RO sent a second request letter out in December 2017 to this employer. Although it does not appear that the second letter was returned by the U.S. Postal Service, the letter was sent to the same address as the first one. The Board notes that a quick internet search found this employer’s Facebook page and confirmed its address and the street address is slightly different from how the RO put it on the letters it sent (but is how the Veteran gave it on his VA Form 21-8940). Therefore, it is unclear whether the employer received the second letter. VA generally makes two attempts to obtain evidence from a private source. As the first letter was returned as undeliverable because of the manner in which the RO addressed it, the Board does not find that attempt to count. Thus, on remand, another attempt should be made to obtain a VA Form 21-4192 from this employer with the letter appropriately addressed. In addition, although a response was not received from the Veteran’s last employer, Arkansas House, nor was the first request letter returned by the U.S. Postal Service, the RO did not send a second letter to this employer. Thus, on remand, another attempt should be made to obtain a VA Form 21-4192 from this employer as well. Finally, at the last VA examination conducted in November 2017, the Veteran reported that he was living on a farm owned by his father and that, as part of a typical day, he takes care of the animals on the farm, which consists of buffalo, cows, dog, chickens, ducks, sheep and goats. The Board finds that additional information is needed as to the farm that the Veteran lives on and his daily activities relating to caring for it and the animals he reported are on the farm, such as when did he move to the farm and begin taking care of the animals thereon, how many of each type of animal is on the farm, whether the animals and/or their byproducts are sold commercially or kept for personal use, how many hours per day the Veteran spends tending the farm and its animals, a detailed explanation of the types of tasks he performs while tending the farm. It must be noted if the farm is a commercial enterprise (meaning it sells crops, livestock or its byproducts for profit), whether the Veteran is receiving compensation, either directly or indirectly (e.g., receiving free housing), in exchange for his labor on the farm and, if so, how much he has earned each year since he started. 3. Entitlement to non-service-connected disability pension benefits is remanded. The Veteran contends that his service-connected PTSD causes him to be unemployable. He has not contended nor does the current evidence of record show that he has any other disabling disabilities. Insofar as this is the case, the Board finds that it would be premature to decide the Veteran’s claim for non-service-connected disability pension benefits since it is remanding for evidence regarding his employability as to his TDIU claim and such evidence may affect the outcome of this claim. Thus, a decision is deferred at this time pending the requested remand development. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the prison medical facility that evaluated him for PTSD in 2011 and Wilber D. Mills, the private substance abuse treatment facility who treated him in 2011. Make two requests for the authorized records from these facilities unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the VA medical facilities in Branson, Missouri, Fayetteville, Arkansas, and Bonham, Texas for the period of April 2011 to the Present. 3. Send second requests to the Veteran’s employers, Homey Hearth Bakery and Deli and Arkansas House, asking them to complete and return VA Form 21-4192 and any other employment records they may have relating to the Veteran’s claim for a TDIU. Ensure that the addresses to which the letters are sent are correct, especially for Homey Hearth Bakery and Deli, as discussed above in the body of this remand. 4. Contact the Veteran and ask him to provide information relating to the farm he lives on and his activities thereon that he reported at the November 2017 VA examination thereon to include, but not limited to, when he moved to the farm and began taking care of the animals thereon; how many of each type of animal is on the farm and the tasks performed in caring for each of them; how many hours per day the Veteran spends tending the farm and its animals, whether he performs any tasks other than feeding the animals in tending to the farm; if the farm is a commercial operation (i.e., are the animals and/or their byproducts sold commercially or kept for personal use); and whether the Veteran is receiving compensation, either directly or indirectly (e.g., receiving free housing), in exchange for his labor on the farm and, if so, how much he has earned each year since he started. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow, 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.