Citation Nr: 21070741 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-26 987 DATE: November 24, 2021 REMANDED The request to reopen the claim of entitlement to service connection for a lung disability is remanded. Entitlement to a rating in excess of 70 percent for service-connected PTSD and unspecified depressive disorder with anxious distress (PTSD) is remanded. Entitlement to a rating in excess of 30 percent for service-connected migraine headaches is remanded. Entitlement to a rating in excess of 20 percent for service-connected umbilical hernia is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from May 1985 to August 1985 and February 2003 to April 2004, with service in Southwest Asia from April 2003 to March 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified at a virtual hearing before the undersigned. 1. Request to reopen the claim for service connection for a respiratory disability is remanded. The Veteran testified that he has received treatment and testing on his lungs from VA in the last two years. The claim file reflects that only VA treatment records up to May 2018 have been associated with the Veteran's file. See Lang v. Wilkie, Fed. Cir. (Decided Aug. 19, 2020) (holding that it is reasonable to presume VA is in the constructive possession of any and all VA medical records for an applicant during the appellate time frame). The records are relevant to ascertain the presence of a current disability. On remand, any outstanding treatment records must be obtained. 2. Entitlement to a rating in excess of 70 percent for service-connected PTSD is remanded. 3. Entitlement to a rating in excess of 30 percent for service-connected migraine headaches is remanded. 4. Entitlement to a rating in excess of 20 percent for service-connected umbilical hernia is remanded. The Veteran was last examined for purposes of assessing the severity of his PTSD, migraine headaches, and umbilical hernia in 2016. During his October 2021 hearing, the Veteran testified that his disabilities had worsened since that time. Specifically, he testified that he was experiencing more pain and frequency with his hernia, having to call out of work due to his headaches, and increased symptomology of his PTSD. Under the circumstances, new examinations are warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 5. Entitlement to a TDIU is remanded. In this case, a remand is required to ensure that there is a complete record upon which to decide the Veteran's TDIU claim. During the Veteran's October 2021 hearing, the Veteran testified that although he was employed, his employment was "sheltered," and therefore marginal, due to the protections of the Family Medical Leave Act (FMLA) of 1993 and sick leave. A remand is needed to obtain any FMLA records. Additionally, because the development sought in connection with the Veteran's claim for a higher rating for his PTSD, headaches, and hernia may impact his TDIU claim, the Board finds the issue to be intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. Specifically, any and all records since May 2018 should be sought. The evidence obtained should be associated with the record. 2. Contact the Veteran and request that he provide proof leave taken, whether it be annual, sick, or FMLA; and of his annual salary throughout the course of the appeal, such as copies of salary statements, wage receipts, W-2s, and/or tax returns. Additionally, any documentation explaining whether or not the Veteran received pay while taking leave under the FMLA is requested. 3. Arrange to have the Veteran scheduled for a VA psychiatric examination for purposes of assessing the current severity of his PTSD. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to his ability to engage in occupational and social activity. 4. Arrange to have the Veteran scheduled for a VA headaches examination for purposes of assessing the current severity of his migraine headaches. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to his ability to engage in occupational and social activity. 5. Arrange to have the Veteran scheduled for a VA hernia examination for purposes of assessing the current severity of his umbilical hernia. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to his ability to engage in occupational and social activity. 6. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.