Citation Nr: 21040332 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 14-38 293 DATE: July 3, 2021 ORDER The petition to reopen the previously denied claim for service connection for a left knee disorder is denied. The petition to reopen the previously denied claim for service connection for right knee disorder is denied. The July 2004 rating decision contained clear and unmistakable error (CUE), and service connection for intermittent explosive disorder is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a November 2014 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's claims for service connection for a left knee disorder and a right knee disorder; he did not appeal that decision. 2. Additional evidence associated with the claims file since the November 2014 rating decision is cumulative or redundant of the evidence of record at the time of the prior denial, and it does not relate to unestablished facts necessary to substantiate the claim for service connection for a left knee disorder and/or a right knee disorder. 3. The July 2004 rating decision denying service connection for a psychiatric disability did not apply rules and regulations requiring VA to address a reasonably raised issue by the evidence record; and but for the error, the outcome would have been manifestly differentnamely, service connection for intermittent explosive disorder would have been granted. CONCLUSIONS OF LAW 1. The November 2014 rating decision that denied the Veteran's claims for service connection for a left knee disorder and a right knee disorder is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 3.104, 20.1103 (2020). 2. As evidence received since the November 2014 rating decision is not new and material, the criteria for reopening the claim for service connection for a left knee disorder are not met. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 3. As evidence received since the November 2014 rating decision is not new and material, the criteria for reopening the claim for service connection for a right knee disorder are not met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The July 2004 rating decision was clearly and unmistakably erroneous in failing to award service connection for intermittent explosive disorder. 38 U.S.C. § 5109A (2018); 38 C.F.R. §§ 3.102, 3.105, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to December 1971. I. Petitions to Reopen Generally, a claim which has been denied in an unappealed AOJ or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of any determination by the AOJ, the Board must address the question of whether new and material evidence to reopen the claims has been received because the matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claims can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran's claims for service connection for a left knee disorder and a right knee disorder were originally denied in a November 2014 rating decision. The AOJ noted that, although service treatment records demonstrated in-service treatment for bilateral knee problems, the evidence did not demonstrate a persistent disability during service, and the evidence failed to demonstrate that his current bilateral knee disorders were incurred during, or caused by, his active duty military service. At the time of the November 2014 rating decision, the evidence of record included his service treatment records, VA treatment records, and an October 2014 VA examination report. The Veteran did not initiate an appeal. As such, the November 2014 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, such regulation is inapplicable here, as there is no indication that new and material evidence was received prior to the expiration of the appeal period associated with the November 2014 rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Furthermore, 38 C.F.R. § 3.156(c) is also inapplicable, as the Veteran's service treatment records were considered in the November 2014 rating decision. Evidence added to the record since the November 2014 rating decision includes his lay statements and VA treatment records. However, the Board finds that such evidence is cumulative and redundant of the evidence of record at the time of the prior decision. As noted above, the November 2014 rating decision concluded that, although service treatment records demonstrated in-service treatment for bilateral knee problems, the evidence did not demonstrate a persistent disability during service, and the evidence failed to demonstrate that his current bilateral knee disorders were incurred during, or caused by, his active duty military service. The newly received evidence likewise does not pertain to a relationship between his current bilateral knee disorders and his military service. While the Veteran's treatment records reflect continued treatment for bilateral knee disabilities, they do not relate his disabilities to his military service. Additionally, the Board notes that the Veteran has raised an alternative theory of entitlement, arguing that his left knee disorder is secondary to his right knee disorder. See January 2019 Notice of Disagreement. While the AOJ did not previously consider whether service connection was warranted for a left knee disorder on a secondary basis, separate theories in support of a claim for a particular benefit are not equivalent to separate claims, and a final denial on one theory is a final denial on all theories. As such, new and material evidence is still necessary to reopen a claim for the same benefit asserted under a different theory. Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). Indeed, merely offering an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim without evidence to support that particular theory, i.e., new and material evidence that raises a reasonable possibility of substantiating the claim. Roebuck, 20 Vet. App. at 307; Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). Here, the Veteran and his representatives are not competent to provide opinions as to whether his bilateral knee disorders are related to his military service or whether his left knee disorder is secondary to his right knee disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, his has not submitted any competent evidence indicating that his bilateral knee disorders are related to his military service or that his left knee disorder is secondary to his right knee disorder that would at the very least trigger VA's duty to assist. Therefore, the Board finds that the newly received evidence is cumulative and redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the claims. Consequently, new and material evidence has not been received to reopen his claims for service connection for a left knee disorder and a right knee disorder, and the petitions to reopen are denied. II. CUE The Veteran alleges CUE in a July 2004 rating decision that denied service connection for PTSD. He argues that the AOJ erroneously limited his claim to just a diagnosis of PTSD, and that it failed to adjudicate his claim for service connection to include any acquired psychiatric disorder shown by the record at the time, including intermittent explosive disorder. As a result, he argues that the July 2004 committed CUE by failing to grant service connection for intermittent explosive disorder despite the fact that the issue was raised by the evidence of record. By way of background, the Veteran entered service with no preexisting mental health disability identified at his entrance examination, and he was therefore presumed sound upon admission. His DD Form 214 shows that his military occupational specialty was as combat engineer, and that he served in the Republic of Vietnam. His service personnel records also demonstrate that he was awarded an Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam. In February 2004, the Veteran filed a VA Form 21-526, Veteran's Application for Compensation and/or Pension, wherein he claimed entitlement to service connection for bilateral hearing loss, tinnitus, and PTSD. In an April 2004 PTSD Questionnaire, the Veteran related his PTSD to his military service in the Republic of Vietnam, to include his duties as a combat engineer. In June 2004, the Veteran underwent a VA examination, and the examiner provided a summary of his pertinent mental health history and symptoms. The examiner then reviewed his reported military history as a combat engineer, to include his reported stressors. Overall, the examiner stated that he adjusted well to military service, that he performed honorably, and that he was exposed to some mild to moderate traumatic stressors during his military service. However, the examiner concluded that the Veteran did not have significant reexperiencing or avoidance symptoms so as to warrant a diagnosis of PTSD. The examiner continued that, although he was an irritable man with an explosive temper and an exaggerated startle response, these symptoms did not merit a diagnosis of PTSD. The examiner went on to say that the Veteran was generally well adjusted in his youth, although he showed early signs of anger dyscontrol, but that it was as likely as not that these qualities were amplified by his combat service in Vietnam. The examiner further stated that his history of multiple quick bursts of physical rage indicate a diagnosis of intermittent explosive disorder that was nascent in his youth, and that it was as likely as not that his Vietnam service led to its full expression. Later, the examiner stated that, while the Veteran did not have enough features to warrant a diagnosis of PTSD, it was as likely as not that his combat exposure precipitated the emergence of a previously-subsyndromal intermittent explosive disorder. In the July 2004 rating decision, the AOJ denied service connection for PTSD. Notably, no mention was made of the diagnosis of intermittent explosive disorder and/or the June 2004 VA examiner's opinion that such was related to the Veteran's military service in the Republic of Vietnam. In Richardson v. Nicholson, 20 Vet. App. 64, 71-72 (2006), the Court held that a claimant may assert that VA failed to adjudicate a reasonably raised claim in the context of a request for revision of a prior decision on the basis of CUE. When presented with such a request, VA must make two threshold factual determinations. First, VA must apply the holding in Roberson v. Principi and give a full and sympathetic reading to the pro se claimant's prior submissions to determine whether such a claim was reasonably raised. See Roberson, 251 F.3d 1378, 1384-85 (Fed. Cir. 2001). If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision. If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE; however, the claim must be adjudicated. If VA determines that the claim was adjudicated, then the claimant may collaterally attack the resulting decision on the basis of CUE. The Board finds that the question of whether service-connection for intermittent explosive disorder may be granted was reasonably raised by the record before the AOJ issued its July 2004 rating decision. While the Veteran claimed entitlement to service connection for PTSD, upon examination, the Veteran was specifically diagnosed with explosive disorder related to service. As the Veteran was claiming entitlement to service connection for a psychiatric disability, and he was not competent to know his exact diagnosis, the issue of whether service-connection for that diagnosis was raised when the evidence showed the correct diagnosis and suggested a relationship to service. The Board also finds that the July 2004 rating decision is final, and a challenge on the basis of a CUE allegation is permissible. Indeed, by the July 2004 rating decision, a claim for service connection for a psychiatric disability was not left unadjudicated; the Veteran did not file a timely notice of disagreement to the rating decision; and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103 (2020). In this connection, although decided after the July 2004 rating decision, the Court's analysis in Clemons v. Shinseki, 23 Vet. App. 1 (2009), informs the decision as to whether any portion of the Veteran's service-connection claim for a psychiatric disability remained pending after the July 2004 rating decision. In Clemons, the appellant in that case had similarly filed a service-connection claim for PTSD, and psychiatric disabilities other than PTSD were evident in the record; nevertheless, neither the AOJ or the Board expanded the scope of the service-connection claim to include consideration of these other disabilities. In assessing its own jurisdiction in the matter, the Court in Clemons found that the appellant had indeed filed one single claim for disability compensation based upon a mental disability; however, the Court held that the Secretary and the Board failed to make findings of fact necessary to correctly determine the appellant's current condition relative to the claim that he filed given his multiple medical diagnoses. The Court went on to hold that that a claim for benefits for a particular mental disability "cannot be a claim limited to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed" by the evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In other words, the mental disorder claims reasonably raised in that case were not separate, unadjudicated claims, but rather were part of one claim that was "improperly adjudicated." In stating as much, the Court found that the Board had the jurisdiction to expand the issue following the Veteran's timely appeal, and to discuss whether service connection for other psychiatric disabilities reasonably raised by the record could be granted in the first instance, without first awaiting a rating decision addressing any pending unadjudicated claims. Applying the logic of Clemons to the present case, the Board finds that the February 2004 claim for PTSD was a single claim for any acquired psychiatric disorder reasonably raised by the record during the pendency of the adjudication. To the extent the AOJ did not expand the scope of the claim when a diagnosis of intermittent explosive disorder was evident, such could be considered an "improper adjudication." Crucially, unlike the appellant in Clemons, the Veteran did not appeal the rating decision and, per the threshold jurisdictional findings made in Clemons itself, failure to expand a claim under Clemons does not give rise to separate unadjudicated service-connection claims that would survive the finality of an unappealed rating decision. In reaching this conclusion, the Board agrees with the reasoning outlined by the Court in a non-precedential December 12, 2017 Memorandum Decision, Lacoste vs. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1789 (December 12, 2017). In that decision, the presiding Judge affirmed the Board's denial of an earlier effective date award, indicating that where the AOJ "improperly adjudicated" a claim pursuant to Clemons, the remedy was to appeal the decision. If the decision is final and cannot be appealed, such cannot provide the basis for an earlier effective date for a subsequent award of service connection in the absence of CUE. See Bethea v. Derwinski, 2 Vet. App. 252, (1992) (a memorandum decision may be cited or relied upon for any persuasiveness or reasoning it contains). In sum, regardless of whether the July 2004 rating decision should have expanded the scope of the Veteran's claim for PTSD to include consideration of the diagnosis of intermittent explosive disorder, it did not, and the Veteran did not challenge that finding by pursuing an appeal. Thus, the decision became final and no separate claim for service connection for intermittent explosive disorder remained pending. DiCarlo v. Nicholson, 20 Vet. App. 52, 57 (2006) (recognizing that "the conclusion that a prior decision is final is not a conclusion that the prior decision is correct"). With these preliminary determinations in mind, the Board now turns to whether the July 2004 rating decision clearly erred in denying the Veteran's psychiatric disability claim in its entirety, and not granting entitlement to service connection for intermittent explosive disorder at the time. Previous determinations that are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the AOJ evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA's failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). The Board finds the allegations of CUE made by the Veteran are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). As noted above, the Veteran alleges CUE in a July 2004 rating decision that denied service connection for PTSD. Specifically, he argues that the AOJ erroneously limited his claim to just a diagnosis of PTSD, and that it failed to award service connection for intermittent explosive disorder, which was raised and sufficiently supported during the pendency of that adjudication. The Court has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The pertinent laws and regulations at the time of this decision were similar, if not essentially the same, as they are now. First, 38 C.F.R. § 3.303(a) provided then, as now, that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Second, under 38 U.S.C. § 5107 (2002), a veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Third, 38 C.F.R. § 3.102 both then and now states that when a reasonable doubt arises due to an approximate balance of positive and negative evidence, such doubt shall be resolved in favor of a veteran. More specific to this case, in Thompson v. Shinseki, the Court noted that that VA regulation has always required a "liberal reading of filings by claimants" even before the Court's creation in 1988. 24 Vet. App. 176, 179 (2010). The Court went on to say that "a layperson's general lack of competence to identify the specific medical condition ailing him has been recognized since the beginnings of the Court, e.g., Espiritu v. Derwinski, 2 Vet. App. 492 (1992), as has the requirement to give a sympathetic reading to veteran's filings by 'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'" Id. at 179 (citing to Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)); see also Kelly v. Nicholson, 463 F.3d 1349 (Fed. Cir. 2006) (finding Agency error based on the Secretary's "failure to consider all evidence and material of record before deciding a material issue on the merits," and noting that the two "diagnoses were not separate claims, merely two means of establishing the same end the service connection claim"); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As noted above, the Board has found that the evidence of record prior to the July 2004 rating decision reasonably raised the question of whether service-connection should be granted for explosive disorder. The law and regulations required VA to recognize this, and adjudicate accordingly. By failing to recognize that the Veteran's service-connection claim for a psychiatric disability included explosive disorder, despite the June 2004 diagnosis and positive nexus opinion, the Board finds that the Veteran's February 2004 claim was ultimately improperly adjudicated, and the AOJ committed error by denying the psychiatric disorder claim in its entirety based solely on a finding that the Veteran had no PTSD diagnosis. Having stated as much, the next question for the Board is whether the error, had it not been made, would have manifestly changed the outcome of the rating decision. In other words, is it undebatable that service connection for a mental health disability (in this case, intermittent explosive disorder) would have been granted if not for the AOJ's error? Here, the June 2004 VA examiner provided a detailed and thorough opinion diagnosing the Veteran with intermittent explosive disorder and associating that diagnosis with his military service in the Republic of Vietnam, to include his participation in combat activities. The examination report reflects consideration of all pertinent evidence, to include the Veteran's lay statements and service history, and it provided a clear conclusion with a supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Furthermore, as noted above, the Veteran's service personnel records show that his military occupational specialty was as combat engineer, that he served in the Republic of Vietnam, and that he was awarded an Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam. Notably these records were of record at the time of the July 2004 rating decision. Thus, at the time of the July 2004 rating decision, all three elements of service connection had been established by competent and credible evidence, i.e. a current disability (intermittent explosive disorder), an event in service (the Veteran's duties as a combat engineer and his participation in operations against a hostile force in the Republic of Vietnam), and competent evidence relating the current disability to the in-service event (the June 2004 VA examiner's opinion). Notably, there was no contrary evidence of record. The Board concludes that the AOJ committed CUE in the July 2004 rating decision that denied entitlement to service connection for a psychiatric disability in its entirety. The decision should be revised to reflect a grant of service connection for intermittent explosive disorder, subject to controlling regulations governing the payment of monetary awards. REASONS FOR REMAND 1. Initial Rating for Service-Connected PTSD Initially, the Board notes that following the April 2020 Supplemental Statement of the Case (SSOC), but prior to certification of the appeal to the Board in August 2020, pertinent VA treatment records were associated with the claims file in April 2020, including an April 2020 VA Mental Health Note. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will be first reviewed at the AOJ so as to not deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence prior to certification and transfer of the case to the Board that is relevant to a claim or claims properly before it that is not duplicative of evidence already discussed in the Statement of the Case or SSOC, it must prepare a SSOC reviewing that evidence. 38 C.F.R. § 19.31(b)(1) (2020). Here, the VA treatment records are relevant to the Veteran's claim for a higher initial rating for his service-connected PTSD. As such, because this evidence was added to the record before the case was transferred to the Board, this matter must be remanded for consideration of such evidence in by the AOJ in the first instance. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. 2. TDIU Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, a claim of entitlement to a TDIU has been raised by the Veteran. Specifically, in January 2011, the Veteran filed a formal claim for a TDIU arguing that he stopped working due, in part, to his service-connected PTSD. See January 2011 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Thus, the Board has jurisdiction over this issue as part and parcel of his claim for a higher initial rating for his service-connected PTSD. In a November 2019 rating decision, the AOJ awarded a TDIU, effective October 1, 2014. However, an award of TDIU prior to October 1, 2014, is still pending in conjunction with his claim for an higher initial rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the AOJ grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). The Veteran's claim for a TDIU is inextricably intertwined with his claim for a higher initial rating for his service-connected PTSD. Parker, supra; Harris, supra. As such, the Board will defer further consideration of that issue at this time. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA treatment records. 2. Give the Veteran an additional opportunity to submit or identify any outstanding evidence pertinent to his claims remaining on appeal. The AOJ should then attempt to obtain those records if he provides the appropriate authorization. 3. Thereafter, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.