Citation Nr: 21074450 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-10 932 DATE: December 15, 2021 REMANDED Entitlement to a rating in excess of 50 percent for major depressive disorder, panic disorder, and insomnia disorder, prior to January 26, 2017, and in excess of 70 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 28, 2017 is remanded. REASONS FOR REMAND The Veteran had active duty service from May 2006 to February 2010. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in February 2016 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In June 2016, the Veteran indicated in his Notice of Disagreement (NOD) that the AOJ had failed to adjudicate his claim for service connection for chronic fatigue syndrome. However, that issue was decided in a June 2016 rating decision, which was not appealed. Therefore, that issue is not before the Board. In his VA Form 9, the Veteran requested a Board hearing on the issues on appeal. In March 2020 and May 2021, the Veteran was notified that a hearing had been scheduled. Prior to the hearing, the Veteran. notified VA that the Veteran was withdrawing his request for a Board hearing. In September 2021, the Board sought clarification from the Veteran regarding whether he was withdrawing the hearing request or his entire appeal, as he indicated that he wanted to "withdraw [his] hearing" and was satisfied with his "current rating and wish[ed] no further action." However, the Veteran did not respond. The Board notes that the Veteran's correspondence did not include his VA file number, meaning it does not satisfy the criteria to withdraw the issues from appellate status. See 38 C.F.R. § 20.204 (b)(1) (withdrawal statement also must include the name of the veteran, applicable VA file number, and a statement that the appeal is withdrawn). Therefore, the Board will proceed with adjudicating the appeal. While the Veteran is in receipt of a TDIU from February 28, 2017, the evidence suggests that he stopped working around October 2016, and prior to that was seeking accommodations at work, because of his panic disorder. Therefore, the Board infers a TDIU claim as part and parcel of the original claim for an increased rating, which was filed in January 2016. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board sincerely apologizes for any additional delay in rendering a decision for these claims on appeal; however, to ensure the Veteran is afforded every opportunity to substantiate his claims, a remand is required. 1. Entitlement to a rating in excess of 50 percent for major depressive disorder, panic disorder, and insomnia disorder, prior to January 26, 2017, and in excess of 70 percent thereafter is remanded. 2. Entitlement to a TDIU prior to February 28, 2017 is remanded. First, the Board finds that a remand is warranted to obtain the Veteran's VA treatment records for the entire appeal period. The only records in the claims file are from January 2016 to November 2017. The Veteran filed a claim for an increased evaluation for his psychiatric disability in January 2016. However, the relevant appeal period for consideration includes the one-year period prior to January 19, 2016. See 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2). Therefore, the AOJ must obtain treatment records for the year prior to the filing of the claim, and update the claims file with records from the last 5 years. Second, a remand is required for the AOJ to attempt to obtain private treatment records. The Veteran's VA treatment records indicate that, in October 2017, the Veteran's psychiatrist discussed with him the need to stop obtaining prescriptions from an outside provider. Additionally, the Veteran has submitted some private treatment records from Shavano Family Practice. A remand is required for the AOJ to request a release of information from the Veteran and to attempt to obtain any private records. Third, the Board must remand the claims because the Veteran raised a claim of clear and unmistakable error (CUE) that was not adjudicated. In his June 2016 NOD, the Veteran also claimed that that there was CUE in the February 23, 2016 rating decision which continued a 50 percent rating for the Veteran's psychiatric disability. The AOJ has not issued a rating decision addressing the CUE claim, making a remand necessary. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc) ("[W]hen attacking a prior RO decision, each [clear and unmistakable error theory] must be presented to and adjudicated by the RO [regional office] in the first instance, and, if not, the Board lacks jurisdiction over the merits of the matter."). Finally, since the Board is remanding the matters, and the most recent VA examination was conducted in May 2017, the Board finds that an updated VA examination is warranted. Consideration of entitlement to a TDIU prior to February 28, 2017 is dependent upon the impact of service-connected disabilities on the Veteran's ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the currently pending claim for increased rating of the Veteran's psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a remand is required of the TDIU claim as well. The matters are REMANDED for the following action: 1. Make as many attempts as necessary to obtain the Veteran's VA treatment records from the VAMC in San Antonio and any follow-up treatment, and supplement the claims file. The request should include records for the period from January 2015 to present day. 2. Ask the Veteran to complete releases authorizing VA to obtain his records from any private provider who has treated him for a psychiatric disability, Shavano Family Practice. If releases are completed, make reasonable efforts to obtain any identified private treatment records. If any requested records are not obtained, inform the Veteran. 3. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected major depressive disorder, panic disorder, and insomnia disorder. If an in-person examination cannot be conducted, an examination by other means should be afforded. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected major depressive disorder, panic disorder, and insomnia disorder, alone. Additionally, the examiner is requested, if possible, to delineate all symptoms associated with any identified nonservice-connected psychiatric disability, including stimulant use disorder. The examiner should provide a complete rationale for any expressed opinion. 4. Adjudicate the issue of whether there was clear and unmistakable error in the February 23, 2016 rating decision which continued a 50 percent rating for the Veteran's service-connected psychiatric disability. If, and only if, the Veteran or his representative files a timely substantive appeal, or the time period for doing so expires, whichever occurs first, should the AOJ return the appeal to the Board for appellate review. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.