Citation Nr: 23048976 Decision Date: 09/06/23 Archive Date: 09/06/23 DOCKET NO. 20-00 251A DATE: September 6, 2023 ORDER A July 31, 2018, effective date is granted for a 70 percent rating for service-connected posttraumatic stress disorder (PTSD). REMANDED A rating higher than 70 percent for service-connected PTSD is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed a November 13, 2018, claim for an increased rating. 2. VA treatment records showed a factually ascertainable increase in disability on July 31, 2018. 3. The increase in disability occurred within the one-year period preceding the November 2018 date of claim. CONCLUSION OF LAW The criteria have been met for a July 31, 2018, effective date for a 70 percent rating for service-connected PTSD. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2003 to June 2007 and is in receipt of a combat action ribbon among others. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In his August 2019 notice of disagreement (NOD) the Veteran reported an inability to work due to his service-connected disabilities. In light of the Veteran's contentions, the issue of TDIU is raised by the record and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that the issue of TDIU is part of an increased rating claim when it is raised by the record). Earlier Effective Date - Increased rating Legal Criteria Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). Factual Background The Veteran filed a November 13, 2018, claim for an increased rating for PTSD. The Veteran returned to VA mental health treatment on July 31, 2018. The VA treatment provider noted the Veteran had not received mental health treatment since 2016. The Veteran reported he felt like he was falling apart every day. The Veteran endorsed chronic insomnia, irritable mood, avoiding others, social isolation, hypervigilance, low energy, and low concentration. The VA treatment provider noted the Veteran's drinks a bottle of vodka almost daily. The Veteran denied suicidal or homicidal ideation. The VA treatment provider assessed PTSD with alcohol use disorder as severe. The Veteran was placed on several medications. The July 2018 suicide risk assessment was low. The Veteran continued VA mental health treatment in September 2018 and October 2018 and the Veteran noted the medication was helping. The VA treatment provider indicated the condition had moved from severe to moderate after medication. The Veteran received a December 2018 VA examination that cited to the 2018 VA mental health treatment. Analysis The Board finds the VA treatment records showed a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim. The Veteran has several months of mental health treatment from July 2018 before he filed his November 2018 claim. Notably, the December 2018 VA examination cites to the VA a treatment records as a basis for the 70 percent rating criteria. Additionally, the Veteran was placed on medication in July 2018 to help manage his worsening PTSD symptoms. Accordingly, a July 31, 2018, effective date is warranted for the 70 percent rating for PTSD. REASONS FOR REMAND 1. Increased Rating for PTSD Remand is required for missing VA treatment records. Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran recived an April 2023 VA examianiton. The examiner cited to mental health treatment from June 2019 to April 2020. The claims file is missing VA treatment records from April 2019 thru April 2021. Any VA treatment records that are within VA's constructive possession, and are considered potentially relevant to the issues on appeal must be obtained. Accordingly, remand is required to obtain the VA treatment records. 2. TDIU Remand is required because TDIU is inextricably interwined with the pending increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, including records from April 2019 thru April 2021 (See April 2023 VA examination). If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this ? should be documented for the record. Required notice must be provided to the Veteran and his attorney. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Whipple, 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.