Citation Nr: 21027728 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 09-14 112 DATE: May 6, 2021 REMANDED Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 28, 2016, and in excess of 70 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to January 1994. She also had additional service with the Army National Guard. The Veteran has referred to herself using female pronouns during this appeal and specifically expressed this preference during VA outpatient treatment and the September 2016 Board hearing. The Board will respect this preference. These claims have a long procedural history as discussed in prior Board decisions including, most recently, the June 2018 Board Decision and Remand. That procedural history will not be repeated here. In the June 2018 Board Decision and Remand, in relevant part, the Board denied an initial rating greater than 50 percent for PTSD, but granted an increase to 70 percent for PTSD effective February 28, 2016, and declined to adjudicate the claim of entitlement to a TDIU. The Veteran appealed each of those aspects of the Board decision to the United States Court of Appeals for Veterans Claims (CAVC). The CAVC issued an order granting the parties' October 2019 Joint Motion for Partial Remand (JMPR) to vacate the June 2018 Board Decision and Remand with respect to the PTSD and TDIU claims and remanded the case back to the Board for compliance with the JMPR. The matters have returned to the Board. 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD prior to February 28, 2016 and in excess of 70 percent thereafter During the pendency of the appeal at the CAVC, VA received additional relevant records, including medical treatment records, VA examinations, and the Veteran's VA vocational rehabilitation file. This evidence has not yet been considered by the agency of original jurisdiction (AOJ). The Board notified the Veteran of the receipt of additional evidence and informed her of her right to waive AOJ consideration of the evidence. See March 2021 Correspondence. The letter also informed the appellant and her representatives that, if she did not waive AOJ consideration within forty-five (45) days of the date of the letter, the Board would assume that she did not want to have the Board decide her appeal and the Board would remand the claim. More than forty-five (45) days have elapsed since the letter was sent and the Board has not received a response, so the Board presumes the appellant would like the Board to remand the matter so that the AOJ will first review the additional evidence and issue an updated SSOC. Absent a waiver and given the Veteran's failure to respond to the notification letter, the above-listed claim will be remanded. See 38 C.F.R. § 20.1305(c). Because remand is necessary, the RO should also obtain updated VA treatment records. Moreover, the most recent VA examination evaluating the Veteran's PTSD is from June 2014 and there is evidence since that time, including during the pendency of the appeal at the Board and at the Court, indicating variations in the severity of the Veteran's PTSD. Therefore, the Veteran should be afforded an updated VA examination. 2. Entitlement to a TDIU As discussed above, a remand is required to permit consideration of the evidence added to the claims file since the Board's 2018 decision. In addition, because the CAVC determined that the Board should have addressed entitlement to TDIU as part of the claim of entitlement to an increased rating for PTSD, the Veteran should have the benefit of an SSOC on that issue by the AOJ. This is an additional, alternative grounds for remanding the TDIU claim and is stated to ensure the TDIU claim is addressed in the SSOC issued pursuant to this remand. Further, the Veteran has not provided updated employment and income information since her November 2014 VA 21-8940 Application for TDIU. Due to the passage of time, particularly given references to current employment in the claims file, see, e.g., October 2020 VA Form 28-1902f (indicating current, temporary employment "as a peer helper"), the RO should request that the Veteran complete an updated VA 21-8940 and provide income statements (e.g., SSA earnings statement) for the period 2014 to the present. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2020 to the Present. 2. Send the Veteran a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and request that the Veteran complete and return the VA Form 21-8940 as well as provide income statements (e.g., SSA Earning Statements) reflecting her income for each year from 2014 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her PTSD alone. 4. Readjudicate the issues on appeal. If the benefits sought are not granted, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. 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.