Citation Nr: 21027063 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-03 859 DATE: May 4, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to February 5, 2018 for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a disability rating in excess of 50 percent from February 5, 2018 for PTSD is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1982 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in March 2019. A transcript of the hearing has been associated with the Veteran's VA claims file. In a January 2020 decision, the Board denied the Veteran's initial increased disability rating claim in excess of 10 percent prior to February 5, 2018 and granted an increased disability rating of 50 percent, but no higher, from February 5, 2018. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in October 2020, the Veteran's representative and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand (JMR). In the JMR, the parties indicated that a remand was necessary "because the Board failed to provide an adequate statement of reasons or bases for its decision" See the October 2020 JMR at page 1-2. The Board's statement of reasons and bases were found inadequate because the Board failed to address lay statements of observable symptoms, evidence of sleep impairment and anxiety, and the adequacy of the February 2018 VA examination. Id. at page 2-3. In an October 2020 Order, the Court vacated the portion of the Board's decision that denied a disability rating for PTSD in excess of 10 percent prior to February 5, 2018, and in excess of 50 percent thereafter, and remanded the matter for readjudication in light of the JMR. 1. Entitlement to an initial disability rating in excess of 10 percent prior to February 5, 2018 for posttraumatic stress disorder is remanded. 2. Entitlement to a disability rating in excess of 50 percent from February 5, 2018 for posttraumatic stress disorder is remanded. The Veteran was provided a VA examination to determine the severity of his PTSD in April 2021. The Veteran reported nightmares almost every night about firefights on deployment. He reported he avoids war movies, checks locks and doors at home, has problems falling and staying asleep, and is tired all the time. The VA examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. His symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of mood and motivation, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstance, including work or a work like setting. Although a diagnosis of PTSD was provided, the VA examiner noted that the Veteran had been released from prison in August 2019 after 29 years. He noted the Veteran's PTSD diagnosis and determining impairment is complicated by 29 years in prison which itself causes "hypervigilance, anxiety, depressed mood, sleep issues, and difficulty in social relationships, etc." As drafted, it is unclear whether the examiner was attempting to distinguish between symptoms attributable to the Veteran's PTSD and those attributable to his lengthy prison sentence. Moreover, the use of "etc." in the examiner's report suggests that this was not a full list of the symptoms that could be attributable to the nonservice-connected condition. The Board is precluded from differentiating between symptomatology attributed to service-connected disability and nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). For this reason, the case must be remanded for a medical opinion which differentiates between service-connected and nonservice-connected pathology and symptomatology, to the extent possible. As another matter, a review of the records discloses that the Veteran is currently receiving mental health treatment at Goldsboro VA for medication management. See April 2021 VA examination. On remand, the Veteran's treatment records should be obtained and associated with his claims folder. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The record also reflects that the Veteran sees a private therapist. On remand, the RO should attempt to obtain any outstanding private treatment records as these may be relevant to the increased rating claim on appeal. 3. Entitlement to a TDIU The Veteran contends that he is unable to obtain substantially gainful employment as a result of his service-connected disabilities. The Veteran's claim for TDIU is inextricably intertwined with his claim for an increased rating for PTSD. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending adjudication. The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record), to specifically include records from Goldsboro VAMC, as well as records from his private therapist. The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. 2. After conducting the development noted above, to the extent possible, arrange for a clinician with appropriate experience to review the Veteran's VA claims folder to determine the current severity of the service-connected PTSD. The reviewer should attempt to distinguish symptomatology which is attributable to the Veteran's service-connected PTSD and that which is attributable to his 29 years in prison. If the reviewer believes that diagnostic testing or an interview with the Veteran is necessary, such should be arranged. If the reviewing clinician cannot distinguish among various psychiatric symptomatology, this should be indicated. A report should be prepared and associated with the Veteran's VA claims folder. A clear rationale for all opinions, with consideration of the lay and medical evidence, would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, Associate 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.