Citation Nr: 21003586 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 10-41 393 DATE: January 22, 2021 REMANDED Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on PTSD for purposes of determining entitlement to special monthly compensation (SMC) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from June 1977 to June 1997. In a January 2019 decision by a Veterans’ Law Judge other than the undersigned, the Board of Veterans’ Appeal (Board) denied the claim for an evaluation in excess of 50 percent for PTSD and dismissed the claim for a TDIU. The Veteran appealed the January 2019 Board decision to the Court of Appeals for Veterans Claims (Court). In a February 2020 order, the Court granted a Joint Motion for Remand (JMR) vacating and remanding the January 2019 Board decision. In this regard the JMR, among other things, found that the Board erred when it dismissed the TDIU claim without adjudicating whether a TDIU was warranted based solely on PTSD for purposes of determining entitlement to SMC. See 38U.S.C. §1114(s); see also Akles v. Derwinski, 1 Vet. App. 118 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008); Payne v. Wilkie, 31 Vet. App. 373 (2019). In August 2020 the Board remanded the appeal. In a November 2020 rating decision, the regional office (RO) granted the Veteran a 70 percent rating for PTSD and Dependent’s Educational Assistance (DEA); both effective from the November 24, 2008, date of claim. Given the above grants and the JMR’s findings regarding the TDIU/SMC issue, the Board has recharacterized the issues on appeal as they appear above. See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation); Also see 38U.S.C. §1114(s); Akles, supra; Bradley, supra; Payne, supra. Entitlement to an evaluation in excess of 70 percent for PTSD and a TDIU based solely on PTSD for purposes of determining entitlement to SMC are remanded. Initially, the Board acknowledges and understands the RO’s post-Remand confusion when addressing this appeal given the confusing directions found in the JMR and the fact that it does not appear possible for the Veteran to receive additional VA disability benefits even if he prevails on his current appeal given the current awards already in place (i.e., a TDIU and DEA in place since the November 24, 2008, date of claim). Nonetheless, the Board and the RO are required to abide by the Court’s February 2020 order. See Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Moreover, the Court in Stegall v. West, 11 Vet. App. 268 (1998), held that, where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance. Furthermore, 38 C.F.R. § 19.31 provides that a supplemental statement of the case (SSOC) will be furnished to the Veteran when additional pertinent evidence is received after a statement of the case has been issued. Accordingly, given the RO’s post-Remand failure to fully comply with the JMR and the August 2020 Remand by both adjudicating and thereafter issuing a SSOC as to the claims for an evaluation in excess of 70 percent for PTSD and a TDIU based solely on PTSD for purposes of determining entitlement to SMC, the Board finds that it must once again remand these claims for the RO to take these actions. See 38 C.F.R. §§ 19.9, 19.31; Forcier, supra; McBurney, supra; Stegall, supra. While the issue is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. (Continued on the next page)   If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. In order to comply with the JMR, adjudicate and thereafter issue a SSOC as to the claims for an evaluation in excess of 70 percent for PTSD and a TDIU based solely on PTSD for purposes of determining entitlement to SMC. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.