Citation Nr: 21071016 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-36 033 DATE: November 29, 2021 REMANDED Entitlement to a rating higher than 50 percent for service-connected post-traumatic stress disorder (PTSD) prior to August 3, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1997 to January 2000. Initially, the Board notes that in an August 2012 rating decision, the agency of original jurisdiction (AOJ) granted service connection for PTSD (50% from March 26, 2010) and traumatic brain injury (TBI) (10% from March 26, 2010). In a June 2015 rating decision, the AOJ reduced the Veteran's rating for PTSD from 50 percent to 30 percent. A September 2019 Board decision restored the Veteran's 50 percent rating for PTSD and remanded the claim for a rating higher than 50 percent for additional development. Unfortunately, there has not been substantial compliance with the Board's previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a September 2021 rating decision, the RO granted a 100 percent rating for PTSD with adjustment disorder with depressed mood and TBI, effective August 3, 2021. As a higher evaluation is available under the rating schedule prior to August 3, 2021, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). Entitlement to a rating higher than 50 percent for service-connected PTSD prior to August 3, 2021. The August 2021 VA examiner diagnosed PTSD, adjustment disorder with depressed mood, insomnia disorder, and TBI. He opined that the adjustment disorder with depressed mood was related to the Veteran's service. He also opined that the TBI symptoms could not be differentiated from the other psychiatric diagnoses. Accordingly, in a September 2021 rating decision, the AOJ granted service connection for adjustment disorder with depressed mood and combined it with the PTSD rating; and also combined the TBI rating with the service-connected psychiatric disability. Unfortunately, the August 2021 opinion is inadequate to determine the severity of the Veteran's disability prior to August 3, 2021. First, the opinion is internally inconsistent with respect to the Veteran's claimed sleep impairment. The examiner diagnosed unspecified insomnia disorder and found that it is due to sleep disturbances that are not subsumed under the PTSD and adjustment disorder diagnoses. He also noted that the Veteran had "some sleep issues due to PTSD." He then noted that insomnia is a common residual of TBI, but that "this nexus is outside the scope of the current evaluation/evaluator." Further, the August 2021 clinician opined that it is not possible to differentiate between the symptoms of PTSD and TBI. However, a VA clinician in September 2014 opined that it is possible to differentiate between the symptoms of PTSD and TBI. Thus, remand is necessary for an opinion that assesses the severity of the Veteran's PTSD symptoms as distinguished from his TBI symptoms prior to August 3, 2021. The Board also finds that the claims file indicates that there are oustanding relevant records. The August 2021 report of VA examination shows that the Veteran reported treatment for PTSD with a private psychiatrist until 2016, and that he "also saw Dr. Micki Levin in Bloomfield Hills in 2016 for treatment and DBQ...." See C&P Exam (August 2021). However, the claims file does not show that those records have been obtained. Although a disability benefits questionnaire completed by Dr. Levin was received in May 2016, no records of the treatment provided by Dr. Levin were included. Additionally, there has been no attempt to obtain the private psychiatric records for treatment prior to 2016. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(1). The Board also notes that, although the Veteran was provided a VA Form 21-4142 Authorization for Release of Information, it was returned incomplete as it did not identify the physicians or facilities that provided medical treatment. The Veteran is reminded that that VA's duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). He should cooperate and assist as requested in the development of this matter. Accordingly, the matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private psychiatrist that provided treatment for PTSD prior to 2016, and any treatment records with Dr. Levin. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Thereafter, obtain an addendum opinion from a different clinician than the clinician who provided the August 2021 opinion to determine the severity of the Veteran's service-connected PTSD prior to August 3, 2021. The clinician must attempt to differentiate between the symptoms of PTSD and TBI prior to August 3, 2021. In doing so, the clinician must opine whether any symptoms not attributed to PTSD are residuals of TBI. The examiner should specifically discuss the Veteran's sleep impairment. Consideration should be given to the September 2014 VA examination and May 2016 private examination. A complete rationale for all opinions should be given. If an opinion cannot be provided, the examiner must state why. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.