Citation Nr: 21028509 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-16 762 DATE: May 11, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) 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 April 2004 to November 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue of entitlement to an initial rating in excess of 30 percent for PTSD and entitlement to a TDIU in February 2016. In a July 2016 rating decision, the RO increased the initial rating for PTSD to 50 percent, effective April 30, 2012. In a March 2018 decision, the Board, in pertinent part, denied entitlement to an initial rating in excess of 50 percent for PTSD and entitlement to a TDIU. The Veteran appealed the March 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Remand (JMPR). In an Order also dated in January 2019, the Court granted the JMPR, vacated that portion of the March 2018 Board decision that denied entitlement to a higher initial rating for PTSD and entitlement to a TDIU, and remanded the case to the Board for further appellate review consistent with the JMPR. In May 2019, the Board remanded the Veteran's claims. 1. Entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran asserts, via his prior representative, that his PTSD and alcohol use disorder warrant a rating in excess of 50 percent. He contends that the current rating does not account for the impact of "moderate alcohol use disorder" and "depression-type symptoms that are directly related to his PTSD." See Third Party Correspondence (February 2017). The Veteran's prior representative also drew attention to the July 2016 VA examination that identified instances of reported suicidal thoughts in October 2012 and January 2013. See also CAVC Decision (January 2019). To ensure that VA has met its duty to assist, remand is again necessary to obtain outstanding treatment records. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). In May 2019, the Board remanded the Veteran's claims requesting that the RO obtain VA treatment records from February 2016 to the present. See BVA Decision (May 2019). While VA treatment records were obtained and associated with the file, the Board observes that these VA treatment records reflect that additional medical records were scanned into the record and note VistA-Imaging-scanned documents. Specifically, the available VA treatment records show that non-VA care outpatient notes were scanned into the system in November 2017, June 2018, September 2019, and October 2019. See CAPRI (October 2019 & August 2020). An August 2020 behavioral health consult in Community Care was also scanned. However, the VA treatment records in the claims file do not include those scanned VistA Imaging documents. As such, there has not been substantial compliance with the Board's prior remand instructions. On remand, copies of all non-VA treatment records scanned into VistA should be associated with the claims file. 2. Entitlement to a TDIU. The matter of TDIU is inextricably intertwined with the claim for an increased rating for PTSD. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Additionally, on remand, additional action should be taken as to the following. First, the Veteran should be afforded another opportunity to resubmit a VA Form 21-8940 and a VA Form 21-4192 because 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 in June 2020. With regard to VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, VA has a duty to attempt to clarify the Veteran's employment history. In this regard, the Veteran provided incomplete information on his September 2020 VA Form 21-8940. Specifically, he provided no date when he last worked full-time. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (September 2020). He indicated that he worked at a golf course through June 2020; however, it is unclear whether he has had any employment since. Additionally, the Veteran did not provide the type of work that he performed at any of the employers that he listed. Id. With regard to VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, after the Veteran most recently submitted VA Form 21-8940 in September 2020, no requests for employment verification to his last employer have been obtained from the Veteran or submitted to the employer. Such should be accomplished on remand. 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 the 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 VA treatment records for the period from October 2020 to the Present. 2. Associate copies of all treatment records that have been scanned into the VistA Imaging system with the Veteran's claims folder. 3. Ask the Veteran to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide complete information needed to address the matter of TDIU. 4. Ask the Veteran to fully complete 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. L. ANDERSEN Acting 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.