Citation Nr: 21009957 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-19 974 DATE: February 23, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from February 1959 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA). The April 2015 rating decision, in pertinent part, granted service connection for PTSD and assigned a rating of 30 percent effective from September 12, 2013. During the pendency of the appeal for a higher initial rating for PTSD, a March 2017 rating decision granted a 50 percent evaluation, effective September 12, 2013. Because this higher rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran’s appeal as to this issue remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993). In April 2019, the Veteran and his spouse presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This matter was previously before the Board in February 2020, when it was remanded for further development. It now returns for appellate review. As a final initial matter, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. During the pendency of the Veteran’s claim for an initial increased rating for his PTSD, an April 2017 VA medical letter was obtained, which documented, in part, the Veteran’s PTSD symptomology and also specifically stated the Veteran was unemployable from his service-connected disabilities. The Veteran is only service-connected for his PTSD, nonetheless, the Board concludes that the Court’s holding in Rice is applicable, and the TDIU claim is properly before the Board, and the issue has been listed as an appeal issue. 1. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. Although the Board regrets the necessity of additional delay, pursuant to the duty to assist, additional development is needed with respect to this claim. In this regard, the record reflects there are outstanding relevant treatment records from the Vet Center in San Jose. Specifically, VA treatment records dated throughout the appeal period, including from April 2017 to September 2019, documented the Veteran continued to receive PTSD treatment from the Vet Center in San Jose. Additionally, in July 2015, the Veteran submitted a VA Form 21-4142 and reported medical treatment from the Vet Center in San Jose. The record request was rejected, in July 2015, by the VA Private Medical Records Retrieval Center because the provider listed was non-private. Further, in a July 2015 notice of disagreement, the Veteran again reported he continued to receive treatment for PTSD at the VA San Jose Vet Center and requested these records be obtained. In November 2016 correspondence, VA noted the Veteran reported treatment from San Jose Vet Center and provided another VA Form 21-4142. However, the only medical evidence of record from the San Jose Vet Center is a September 2014 letter submitted by the Veteran in October 2014 (and again in January 2015). Thus, a remand is required to allow VA to request these potentially relevant records. Further, in light of the remand for the matter outlined above, updated VA treatment from the VA Palo Alto Health Care System, since March 2020, should be obtained and associated with the record. 2. Entitlement to a TDIU is remanded. As noted above, the issue of entitlement to a TDIU is based on the Veteran’s service-connected PTSD. Rice, 22 Vet. App. at 453-54. Thus, as the issue of entitlement to a TDIU is intertwined with the Veteran’s claim for an initial increased rating for his PTSD, a remand is warranted for the claim for TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Veteran should be provided with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion. The matters are REMANDED for the following actions: 1. Provide the Veteran with VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion. The Veteran and his representative should be given an opportunity to respond to this notice, and any additional information or evidence received should be associated with the claims file. (Continued on the next page)   2. Obtain any and all of the Veteran’s treatment records from the Vet Center in San Jose. 3. Obtain the VA treatment records for the Veteran dated from March 2020 to the present. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.