Citation Nr: 23062320 Decision Date: 11/22/23 Archive Date: 11/22/23 DOCKET NO. 17-50 984 DATE: November 22, 2023 REMANDED Entitlement to a rating in excess of 50 percent prior to August 28, 2020, and in excess of 70 percent from that date for panic disorder without agoraphobia (panic disorder) is remanded. Entitlement to a compensable rating prior to September 1, 2023, and in excess of 30 percent from that date for gastroesophageal reflux disease (GERD) 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 1998 to August 2002 and from November 2005 to July 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2022, the Board, in pertinent part, remanded the claims of entitlement to a rating in excess of 50 percent prior to August 28, 2020, and in excess of 70 percent from that date for panic disorder without agoraphobia, entitlement to a compensable rating for GERD, entitlement to service connection for a right knee condition, and entitlement to a TDIU. In a September 2023 rating decision, the Veteran was granted service connection for right knee patellofemoral osteoarthritis. Accordingly, that issue is resolved and is no longer before the Board. Also in the September 2023 rating decision, the Veteran was granted an increased rating of 30 percent for GERD, effective September 1, 2023 (the date of a VA examination). The Veteran was advised that this decision represented a total grant of benefits sought on appeal and, as such, the issue was considered resolved in full. As will be discussed further in the remand section below, this is incorrect and as such the matter of the increased rating assigned for the Veteran's GERD remains on appeal. 1. Entitlement to a rating in excess of 50 percent prior to August 28, 2020, and in excess of 70 percent from that date for panic disorder without agoraphobia In its November 2022 decision, the Board remanded the Veteran's increased rating claim for panic disorder to obtain outstanding private treatment records. The Board noted that the Veteran testified at the October 2021 Board hearing that he had been receiving mental health treatment from Duke since approximately January 2019. However, the most recent private treatment records in the claims file were from June 2019. The record reflects that, on remand, the RO requested the Veteran's private treatment records from Duke Psychiatry at Civitan Building and Duke Behavioral Health North Durham in March 2023 and April 2023. On the same days as those requests, a request for private treatment records was also made to Duke Primary Care Wake Forest. In May 2023, Duke University Health System returned the RO's request for medical record copies citing that they could not release information without a signed and dated authorization from the patient or authorized representative. In May 2023, the record retrieval VA contractor rejected the medical record request on the basis of the Veteran's VA Forms 21-4142 and 21-4142a being illegible. The Veteran was notified of the unsuccessful attempt to obtain his private treatment records in a June 2023 letter. The Veteran was also asked to complete and resubmit VA Forms 21-4142 and 21-4142a if he still desired for VA to assist in obtaining his private medical records. The record does not contain re-submitted forms, but an invoice and treatment records from Duke University Heath Systems was received in August 2023. Upon review of the private treatment records obtained from Duke University Health Systems, they appear to relate to follow up treatment for diabetes mellitus and annual wellness visits, and no mental health treatment records were obtained as directed by the November 2022 Board remand. The record does not show that the RO notified the Veteran that his mental health records were not or could not be obtained. However, the Duke University Health Systems records listed future appointments at the Duke Psychiatric Outpatient Clinic with Dr. M.H. in August 2020 and March 2021 and future appointments at the Duke Behavioral Health North Durham in December 2021 with nurse practitioner M.P and in January 2022 and July 2022 with nurse practitioner M.K. Therefore, as there are still outstanding private mental health treatment records that have not been obtained, the Board cannot make a fully informed decision as to this issue. Regrettably, the Board again finds that additional development is needed before the Veteran's claim on appeal can be decided as there has not been substantial compliance with the directives of the November 2022 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a compensable rating prior to September 1, 2023, and in excess of 30 percent from that date for GERD As indicated at the outset, the issue of entitlement to an initial compensable disability rating for the Veteran's service-connected GERD was remanded by the Board in November 2022. Following additional development, the September 2023 rating decision granted an increased evaluation of 30 percent for that disability, effective from September 1, 2023. Although the rating decision stated the award of a 30 percent disability rating represented a "total grant of benefits sought on appeal for this issue," and that the issue was "considered resolved in full," the Veteran was not granted a higher rating for the period prior to September 1, 2023. Moreover, the record does not indicate that the Veteran has notified VA that he is satisfied with either of the ratings that have been assigned for his GERD, prior to September 1, 2023, and from that date. As such, the September 2023 rating decision does not constitute a full grant of the benefits sought on appeal and the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the matter of the ratings for the Veteran's service-connected GERD remains on appeal, remand is required for the Agency of Original Jurisdiction (AOJ) to issue a Supplemental Statement of the Case (SSOC) that addresses the claim for increased ratings for GERD. See 38 C.F.R. §§ 19.31, 19.38. 3. Entitlement to a TDIU Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Duke Psychiatric Outpatient Clinic and the Duke Behavioral Health North Durham for the period from June 2019. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Undertake any additional development that may be indicated by the claims file, consider all the evidence of the record, and then issue an SSOC that adjudicates any issue that remains on appeal, including the issue of entitlement to compensable rating prior to September 1, 2023, and in excess of 30 percent from that date for service-connected GERD. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Coburn 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.