Citation Nr: 21022228 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 09-48 915 DATE: April 15, 2021 REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with alcohol dependence prior to December 4, 2020, 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) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to June 1968. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2009 rating decision. In January 2019, the Board denied a rating in excess of 50 percent for the Veteran’s service-connected psychiatric disability and found that the issue of TDIU was not raised by the record. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In January 2020, the Court granted the parties’ January 2020 Joint Motion for Partial Remand (JMPR) to vacate the parts of the January 2019 Board decision that denied a rating in excess of 50 percent for psychiatric disability and that found the issue of TDIU was not raised by the record, and to remand those matters for readjudication. During the course of the appeal, in a February 2021 rating decision, the Veteran’s PTSD rating was increased to 70 percent, effective December 4, 2020. As the increase does not represent a full grant of the benefit sought, the claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to TDIU has been raised by the record and has been added to the appeal as part and parcel to the Veteran’s claim for a higher rating for his psychiatric disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation). 1. Entitlement to a rating in excess of 50 percent for PTSD with alcohol dependence prior to December 4, 2020, and in excess of 70 percent thereafter, is remanded. 2. Entitlement to a TDIU is remanded. As agreed in the JMPR, and ordered by the Court, remand of this matter is necessary to obtain outstanding treatment records. In the JMPR, the parties agreed that the Veteran’s claims file did not contain all of the Veteran’s outstanding VA treatment records. In the JMPR, the parties agreed that VA must obtain the Veteran’s individual therapy treatment records since December 2012 and his group therapy treatment records since August 2016. Although the Veteran submitted VA and Vet Center records in December 2020, these records are not clear (as a portion of many pages is blocked off) and the record shows that there are additional outstanding Vet Center records. The records submitted by the Veteran show that Vet Center records were obtained October 2020, but the Veteran reported continuing biweekly therapy at the Vet Center in his January 2021 VA psychiatric examination. The Board acknowledges the January 2021 statement from the Veteran’s attorney requesting that VA stop the development of evidence and waiving any right for VA to develop the evidence at this time. However, for the above reasons, in order to ensure compliance with the terms of the January 2020 JMPR and the Court’s January 2020 order, the Board finds that remand of this matter is warranted. In addition to the above, the Board notes that the Veteran’s claim for a TDIU is intertwined with his claim for a higher rating for psychiatric disability and will also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records, to include VA treatment records from September 2020 to the present, group therapy treatment records from the Vet Center for August 2016 to the present, and individual therapy Vet Center records from December 2012 to the present. 2. After the above development, and any other development deemed necessary, readjudicate the claims, including the Veteran’s claim for TDIU. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.