Citation Nr: 21064321
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 17-38 555
DATE: October 19, 2021

REMANDED

Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1972 to November 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2019.  A transcript of the hearing is of record.

The Board remanded this matter in November 2019.  In a July 2020 decision, the Board denied an increased rating for the above claim.  The Veteran appealed the Board's July 2020 decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2021 Order, the Court vacated, in part, the July 2020 Board decision, and remanded the issue of a rating in excess of 70 percent from February 19, 2020, for PTSD to the Board for further development.

The Board notes that the issue of TDIU has been reasonably raised by the Veteran's contentions.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

1. Entitlement to a rating in excess of 70 percent from February 19, 2020, for posttraumatic stress disorder (PTSD) is remanded.

In the June 2021 Court Order, the Court determined that the Board failed to ensure that VA complied with the duty to assist when it failed to undertake adequate efforts to obtain the Veteran's relevant Social Security Administration (SSA) records.  Specifically, the Court found that the Veteran received Social Security Disability Income (SSDI), but SSA documents were not in the record.  The Court also found that there was evidence in the record indicating that the Veteran retired due to her PTSD.  Therefore, the Board's finding that TDIU was not raised by the record was erroneous.  The Board is bound by these findings by the Court.

Therefore, on remand, a request for all SSA records should be made.  Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).

2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

The issue of TDIU is inextricably intertwined with the remanded issue of a rating in excess of 70 percent from February 19, 2020, for PTSD.  Therefore, the issue of TDIU should be adjudicated after the necessary development is completed for the PTSD.

The matters are REMANDED for the following actions:

1. Obtain any outstanding VA or private treatment records.  Specifically, request any outstanding SSA records.  Request that the Veteran assist with locating these records, if possible.  Associate these records with the claims file.

2. Make all appropriate efforts to develop evidence regarding an unemployability claim.

3. Thereafter, readjudicate the claims on appeal.  If the benefit sought remains denied, issue the Veteran and her representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Brown, Saudiee

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.