Citation Nr: 20052002 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 12-34 192 DATE: August 5, 2020 REMANDED Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1966 to March 1974. In October 2015, the Veteran had a hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In August 2017, the Veteran was sent correspondence and was given an opportunity to have a second hearing since the judge who conducted his hearing was unavailable to participate in the Veteran’s appeal. However, the Veteran did not respond or indicate that he wished to testify at a new hearing. This matter was previously before the Board in February 2019, in which the Board granted the Veteran an increased rating of 70 percent for PTSD for the period prior to February 21, 2017. Conversely, the Board denied a rating in excess of 70 percent for the entire appeal period. The Board also denied entitlement to a TDIU. However, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) in February 2020. As a result, the parties entered into a Joint Motion for Partial Remand (JMPR) and the Board’s decision was vacated as to the denial of an increased rating for PTSD and as to the denial of his claim for TDIU. Thus, the matters have been returned to the Board for further appellate review and is addressed further below. The Board notes that new evidence has been added to the record since the last Supplemental Statement of the Case (SSOC) issued in July 2018, and the Veteran did not submit a waiver of review by the Agency of Original Jurisdiction (AOJ); however, as the matters are being remanded, the AOJ will have an opportunity to review the evidence in the first instance while on remand. 1. Entitlement to a rating in excess of 70 percent for PTSD with MDD. In the JMPR, the Veteran contended that private treatment records relevant to the Veteran’s PTSD were outstanding that were not considered by the Board. While the Board acknowledges that the Veteran received private psychotherapy treatment from Dr. S.M., and from the Corvallis Clinic; the evidence shows that the AOJ attempted to retrieve the Veteran’s private treatment records in December 2016. In this regard, the Board notes that in a December 2016 Duty To Assist (DTA) Letter, the AOJ acknowledged the Veteran’s private treatment and requested that the Veteran return a VA Form 21-4142 and VA Form 21-4142A which would allow and authorize VA to retrieve any private treatment records identified by the Veteran. However, the Veteran did not respond or return the requested authorizations. Nonetheless, since the last DTA Letter, it appears the Veteran has received additional outside therapy as a May 2018 treatment note indicates that psychotherapy treatment was authorized from a non-VA provider. As these records are pertinent to the Veteran’s claim, remand is warranted to satisfy VA’s duty to assist. While on remand, the AOJ should attempt to retrieve all of the Veteran’s outstanding private treatment records. However, the Veteran is reminded that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Otherwise, the matter will be decided based upon the evidence of record. 2. Entitlement to a TDIU. In the Board’s February 2019 decision, the Veteran’s claim for TDIU was denied because the Board did not have enough information regarding the current status of the Veteran’s employment and disabilities. However, in the JMPR, the Veteran contended that the Board failed to consider evidence already of record of the Veteran’s unemployment. Specifically, he contended that in his February 2017 VA examination, the examiner noted that the Veteran was no longer gainfully employed. He further contended that in his October 2015 Board hearing, he testified that he has not worked since 2010. In addition, he asserted that his private mental health provider, S.W., found him unemployable as noted in an October 2010 treatment note. The Board agrees and acknowledges that this evidence is of record; however, the question before the Board is not whether the Veteran is unemployed; but rather, whether his service-connected PTSD with depression precludes his ability to obtain and maintain substantial gainful employment. Despite the Veteran’s contentions which may indicate the Veteran is unemployed, there is other evidence of record that is inconsistent with his contentions. For example, while the Veteran reported he was no longer gainfully employed in his February 2017 examination, he also indicated that this was partially due to physical limitations and chronic pain. In addition, contrary to his testimony of not having worked since 2010, he reported otherwise in his May 2016 diabetic-neuropathy examination, as he noted that he was a school bus driver from 2008 to 2011. Moreover, in his May 2014 PTSD examination, he reported that he started a youth shelter which suggests that he may have been self-employed. Further, none of the information of record addresses the Veteran’s work history or education level, which are both considerations in a determination of his unemployability. As explained above, the Veteran failed to respond to the December 2016 DTA Letter which would have provided the Board with relevant information pertaining to his claim for TDIU. Given the above, the Board reiterates that the evidence of record does not clearly indicate that his service-connected PTSD precludes the Veteran from obtaining and maintaining substantially gainful employment. As such, while remand is warranted because the matter is inextricably intertwined with the Veteran’s claim for PTSD, remand is also necessary to obtain additional information regarding the Veteran’s employment history and educational level. As explained above, the Veteran has a duty to assist with the development of his claim; otherwise, the matter will be adjudicated based solely on the evidence of record. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims folder. 2. The AOJ should undertake appropriate development to obtain any outstanding private treatment records related to the Veteran’s PTSD. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Send the Veteran a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) to obtain an employment history covering the entirety of the appeal period as well as the Veteran’s educational history. Request any additional information necessary to verify the Veteran’s employment history. 4. After completing the above actions, and any additional development that the AOJ deems necessary, the AOJ should re-adjudicate the claims in a supplemental statement of the case to the Veteran and his representative and provide them with an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate 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.