Citation Nr: 21026422 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-28 607A DATE: May 3, 2021 REMANDED Entitlement to an increased disability rating (or evaluation) for posttraumatic stress disorder (PTSD) in excess of 50 percent is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from July 1966 to August 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. At the outset, the Board will review the procedural history of the instant matter. Following the January 2015 rating decision denying an increased disability rating for PTSD and a TDIU, the Veteran's representative submitted a notice of disagreement (NOD) in February 2015. Subsequently, a statement of the case (SOC) was issued in October 2016. In June 2017, the Veteran's representative filed an untimely substantive appeal, via VA Form 9; however, the representative argued that the substantive appeal should be accepted as timely, as the representative had not been provided a copy of the SOC. In June 2017, VA sent the Veteran and representative a letter informing that the VA Form 9 was not being accepted as timely filed. Subsequently, in January 2018, the representative filed a new NOD as to the June 2017 finding of untimeliness. No SOC was issued concerning timeliness. Rather, in February 2018, per a VA Form 8, the PTSD rating and TDIU issues were certified to the Board. Further, in October 2018, the representative attempted to submitted a new claim for an increased disability rating for the PTSD; however, in a subsequent October 2018 letter, the RO informed the representative that VA was already processing an appeal on the issue of an increased disability rating for PTSD. In Percy v. Shinseki, 23 Vet. App. 37, 45 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the statutory period with regard to filing a substantive appeal is discretionary and not jurisdictional. Thus, because a timely NOD was filed by the Veteran, the Board may assume jurisdiction of the PTSD rating and TDIU issues on appeal. Here, the PTSD rating and TDIU issues on appeal were certified to the Board following receipt of the June 2017 VA Form 9, and in October 2018, VA explicitly informed the Veteran and representative that the PTSD rating issue was on appeal before the Board. As VA has treated the issues on appeal as properly perfected, pursuant to Percy, the Board finds it has waived the timeliness of substantive appeal requirement in this case, so has jurisdiction to address the issues of an increased disability rating in excess of 50 percent for PTSD and entitlement to a TDIU. In the June 2017 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board as to the issues on appeal. Per a subsequent February 2020 brief, the Veteran's representative asked to withdraw the hearing request, as the Veteran will be unable to attend any future hearings due to ongoing psychiatric institutionalization. As such, the Board finds there is no hearing request pending at this time as the previous request has been withdrawn. 38 C.F.R. § 20.704(e). 1. PTSD Rating in Excess of 50 Percent In August 2016, VA received treatment records from the Buffalo Psychiatric Center, where the Veteran remains institutionalized. Subsequently, VA received a psychological assessment report from the Buffalo Psychiatric Center dated April 2018; however, no other treatment records from that time period were received. As it appears to the Board that there are outstanding treatment records from the Buffalo Psychiatric Center for the period from August 2016 to the present, the Board finds remand to obtain these outstanding mental health treatment records to be warranted. 2. TDIU The question of entitlement to a TDIU may be affected by the development of the PTSD rating issue on remand; therefore, the TDIU issue is inextricably intertwined with the PTSD rating issue. The matters are REMANDED for the following action: 1. Contact the Veteran/representative and request information as to any outstanding private treatment (medical) records concerning PTSD, to include outstanding treatment records from the Buffalo Psychiatric Center for the time period from August 2016 to the present. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's PTSD, not already of record, for the period from December 2017. 3. Then, readjudicate the issues of an increased disability rating in excess of 50 percent for PTSD and entitlement to a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.