Citation Nr: 21012212 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-28 557A DATE: March 3, 2021 REMANDED Entitlement to a rating in excess of 30 percent prior to June 22, 2020, and in excess of 50 percent therefrom for post-traumatic 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 served on active duty from July 1967 to June 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2011rating decision, by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board denied the Veteran’s claim for an initial rating in excess of 30 percent for PTSD. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Partial Remand (JMPR); vacated that portion of the May 2018 Board decision which denied an initial rating in excess of 30 percent; and remanded the appeal to the Board for additional action consistent with the JMPR. The JMPR also noted that a claim for TDIU was raised by the record and remanded the claim of entitlement to a TDIU to the Board for adjudication. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In May 2020, the Board remanded the Veteran’s claims. An August 2020 rating decision increased the Veteran’s rating for PTSD to 50 percent from June 22, 2020. The RO continued to deny a rating in excess of 30 percent prior to June 22, 2020 and entitlement to TDIU. As increased disability rating for PTSD does not represent a full grant of the benefit sought on appeal, the claim remains in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a rating in excess of 30 percent prior to June 22, 2020, and in excess of 50 percent thereafter for PTSD. 2. Entitlement to TDIU. Issues 1 & 2: The Veteran, via his representative, contends that higher ratings are warranted to his service-connected PTSD and that he is entitled to TDIU. Specifically, the Veteran’s representative asserts that the Veteran’s symptoms, including suicidal ideation, angry outbursts and difficulty adapting to stressful circumstances were profoundly debilitating and created a volatile and potentially dangerous workplace prior to his retirement tin January 2015. See Appellate Brief (February 2021). An additional remand is required in order for VA to fulfill its duty to assist the Veteran in developing his claim. With regard to the Veteran’s claim for TDIU, the Board finds that the record is incomplete with regard to the Veteran’s employment history, income/wages, his training and/or skills, and the reason for termination of his employment. First, the record reflects that the Veteran is receiving Social Security Administration (SSA) benefits. SSA profile and benefit data does not specify the conditions for which he is receiving benefits. Nevertheless, these records are considered federal records for duty to assist purposes. The RO, in this case, has not made the appropriate attempts to obtain the records. Upon remand, SSA records must be obtained. See 38 C.F.R. § § 3.159 (c)(2) and (3); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (if a reasonable possibility exists that the SSA records are relevant to a Veteran’s claim, VA is required to assist a Veteran in obtaining the identified records). Second, given the conflicting employment information provided by the Veteran and located in the medical records, VA had a duty to attempt to clarify the Veteran’s employment history. In this regard, the Veteran provided incomplete information on his November 2019 VA Form 21-8940. For example, he provided that he became too disabled to work and date he last worked as January 2015, while stating that he ended working at the Portland VA Medical Center in February 2015. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (April 2020). He also indicated that his disability affected full-time employment beginning in May 2010. Id. At his last VA PTSD examination in June 2020, the Veteran reported retiring in 2012. See C&P Exam (June 2020). He also reported exercising at a local swimming pool prior to the start of the pandemic, and increased depression since the local pool closed. Id. He reported contact with five childhood friends whom he saw every month before the pandemic, and described limited social relationships including going to Walmart once a week, checking his mail and chatting with the people by the post box, stating “we’re friendly.” Id. Earlier VA PTSD examinations, including in April 2015, show that he retired from Vancouver VA Medical Center, not Portland VA Medical Center as he indicated on his VA Form 21-8940. See C&P Exam (April 2015). The Veteran’s representative submitted a medical opinion from Dr. B. C., MD, dated January 2021 that provides that the Veteran worked until 2015, but then stopped entirely. See BVA-General (December 2018). This information also conflicts with the information the Veteran provided during his June 2020 VA examination. Again, given the conflicting employment information, VA had a duty to attempt to clarify the Veteran’s employment history by means of obtaining a completed VA Form 21-8940 and securing income tax records for the years associated with the TDIU appeal period to facilitate a determination on his employment status. Third, it is unclear what positions and jobs the Veteran has held and when, and there is no meaningful information on whether his employment was marginal or substantially gainful prior to its reported termination in February 2015. Therefore, the Board is unable to evaluate whether the criteria for TDIU are met. Remand is necessary to allow the Veteran to submit a VA Form 21-4192 and to allow VA to request information from his previous employers concerning the reasons and circumstances of his work separation. The Veteran is reminded that the VA’s duty to assist a claimant is not a “one-way street,” and a claimant seeking help cannot passively wait for it in those circumstances where he or she may have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s relevant federal records from the U.S. Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to fully complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to allow VA to obtain relevant employment information. 3. Send a letter to the Veteran, with a VA Form 21-4192, Request for Employment Information, requesting that the Veteran complete the form and provide any additional information to substantiate a claim of entitlement to TDIU. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 4. Request the Veteran’s tax returns to confirm his claimed unemployment during the period from July 2010 through February 2015. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.