Citation Nr: 21031884
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 13-03 822
DATE: May 24, 2021

REMANDED

Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disability, characterized as chronic posttraumatic stress disorder (PTSD) to include unspecified depressive disorder, 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 June 1970 to April 1972.

These matters are on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  That rating decision increased the rating for PTSD from 30 to 50 percent, effective June 21, 2011.

In an August 2017 decision, the Board denied the Veteran's claim seeking a disability rating in excess of 50 percent for an acquired psychiatric disability.  The Board also did not consider his entitlement to TDIU because he had filed a separate claim for TDIU in December 2016, and that claim had been denied by a March 2017 rating decision, and he did not appeal the March 2017 rating decision.  The Veteran appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2019, the Court granted a Joint Motion for Remand (JMR), vacating the Board's decision and returning the Veteran's claim of entitlement to a disability rating in excess of 50 percent to the Board.  In part, the JMR instructed the Board to consider whether the Veteran's entitlement to TDIU was raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009).

In an August 2019 decision, the Board denied the Veteran's claims seeking a disability rating in excess of 50 percent for an acquired psychiatric disability and entitlement to TDIU.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2021, the Court granted a JMR filed by representatives for both parties, vacating the August 2019 Board decision and remanding the matters to the Board for further proceedings consistent with the JMR.

1. Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disability is remanded.

In the January 2017 VA examination, the examiner noted that the Veteran continued to receive outpatient mental health treatment at VA and that he participated in group and individual therapy.  Further, the last VA treatment records in the file are from November 2017, which document that the Veteran was receiving regular psychiatric treatment.  See May 2017 VA psychiatry note, July 2017 VA mental health group counseling note, August 2017 VA mental health note, and August 2017 VA psychiatry note.  Given that the Veteran was receiving regular VA treatment for his disability on appeal and that the Board did not have this evidence at the time of the August 2019 Board decision, the Board now finds that there are relevant VA treatment records outstanding.  VA has a duty to obtain relevant, identified evidence prior to an adjudication on the merits.  38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2).

2. Entitlement to a TDIU is remanded.

As a decision on the remanded issue of entitlement to higher rating for PTSD could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined.  A remand of the TDIU claim is also required.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period from November 2017 to the present.

2. Thereafter, schedule the Veteran for a VA examination for his service-connected psychiatric disability to ascertain the current severity of the disability and the impact of it on his employability.

3. Thereafter, readjudicate the claims on appeal.

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Hammad Rasul, 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.