Citation Nr: 21012070
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 12-27 512
DATE: March 3, 2021

REMANDED

Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to May 14, 2019 is remanded.

Entitlement to a disability rating in excess of 70 percent for service-connected PTSD on and after May 14, 2019 is remanded.

Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss prior to July 5, 2011 is remanded.

Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from July 5, 2011, to August 28, 2019 is remanded.

Entitlement to a disability rating in excess of 20 percent for service-connected bilateral hearing loss on and after August 29, 2019 is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 14, 2019 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1969 to January 1972.

This matter most recently came before the Board in November 2019.  See November 2019 Board Decision.  The procedural history prior to November 2019 was set forth in that decision and will not be recounted in detail here.

The November 2019 Board Decision denied the above-referenced claims (except to the extent it amended the effective date of the 10 percent rating for bilateral hearing loss).  The Veteran appealed that decision (except for the revised effective date of July 5, 2011 for a 10 percent rating for hearing loss) to the United States Court of Appeals for Veterans Claims (Court).  In that appeal, the parties agreed to a September 2020 Joint Motion for Remand (JMR) which provided that the Board erred by adjudicating the appeal without first addressing two procedural issues, which both related to VA’s failure to send a supplemental statement of the case (SSOC) to the representative’s correct address of record.  The Court granted the JMR in a September 2020 Order.  The matter has returned to the Board for readjudication consistent with the September 2020 JMR.

The Veteran’s representative submitted a December 2020 questionnaire completed by social worker D.W.  That individual is also identified in his VA records as his mental health provider; however, the last VA records in the file are from August 2019.  It is clear from the questionnaire this social worker is currently treating the Veteran, so that indicates there are relevant VA treatment records outstanding.  VA has a duty to obtain relevant, identified evidence prior to an adjudication on the merits.  38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2).

Although the questionnaire does not specifically indicate treatment for bilateral hearing loss, it is unknown whether more recent VA treatment records would contain any information relevant to his hearing loss.  Under these circumstances, without definitive information the outstanding records would not be relevant to his hearing loss claim, the Board will err on the side of caution and remand this claim as well.  

Finally, because a decision on the remanded issues of entitlement to higher ratings for PTSD and bilateral hearing loss could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined.  A remand of the TDIU claim is also required.

The matters are REMANDED for the following action:

Obtain the Veteran’s VA treatment records for the period from August 2019 to the Present.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Kerry Hubers

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.