Citation Nr: A25035373 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230602-351475 DATE: April 16, 2025 REMANDED Entitlement to increased disability ratings since June 11, 2011, for posttraumatic stress disorder with unspecified anxiety disorder (hereinafter "PTSD"), is remanded. Entitlement to an earlier effective date for the grant of entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service in the United States Army from May 2008 to June 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2023 Higher-Level Review (HLR) rating decision that was issued by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). Prior to the May 2023 HLR rating decision on appeal, the AOJ denied the issues currently on appeal in a January 2023 rating decision, after which the Veteran filed a timely HLR request. In the June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran identified the May 2023 rating decision as the decision on appeal as well as elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2023 AOJ rating decision, which was subsequently subject to higher-level review. 38 C.F.R. §?20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§?20.300, 20.301, 20.801. However, because the Board is remanding all issues currently on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Procedural History The Board notes that this appeal is the product of a complicated and unique procedural history. Accordingly - and in consideration of the arguments raised by the Veteran's representative as well as the spate of recent precedential decisions that affect the outcome of this appeal - a detailed discussion of the procedural history of this case is necessary to establish the period on appeal before the Board and, ultimately, the appeal period the AOJ must consider on remand. In July 2011, the AOJ granted the Veteran's claim for a service-connected psychiatric disability, which the AOJ characterized as anxiety and to which the AOJ assigned a non-compensable disability evaluation effective June 11, 2011. The next substantive pleading of record was the Veteran's Intent to File, which VA received on October 17, 2017. However, the Veteran did not submit a claim within one year of the October 2017 Intent to File. In November 2018, the Veteran submitted another Intent to File and in February 2019, the Veteran formalized his increased rating claim for his service-connected anxiety. See VA Form 21-526EZ, Fully Developed Claim (Compensation), received February 12, 2019. In a March 2019 rating decision, the AOJ denied the Veteran's increased rating claim for anxiety. VA received the Veteran's Intent to File in July 2019, after which the Veteran filed an increased rating claim for his anxiety disorder as well as a claim of entitlement to a TDIU. See VA 21-526EZ, Fully Developed Claim (Compensation), received November 6, 2019; VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, received November 6, 2019. In a May 2020 rating decision, the AOJ denied the Veteran's claim of entitlement to a TDIU. However, in the same rating decision, the AOJ increased the Veteran's disability rating for his psychiatric disability - which the AOJ recharacterized as PTSD with unspecified anxiety disorder (hereinafter "PTSD") - from non-compensable to 30 percent effective July 15, 2019. VA received the Veteran's Intent to File in April 2021, which was followed by the Veteran's increased rating claim for PTSD via submission of VA Form 21-526EZ in April 2021. Shortly thereafter, VA received the Veteran's claim of entitlement to a TDIU via submission of its prescribed form - that is VA Form 21-8940 - in May 2021. In a May 2021 rating decision, the AOJ again increased the Veteran's disability rating for his PTSD - this time from 30 percent to 50 percent - effective April 1, 2021. The AOJ also deferred adjudication of the issue of entitlement to a TDIU for additional development. In August 2021, the Veteran submitted a HLR request for the May 2021 rating decision. In its September 2021 rating decision, the AOJ denied the Veteran's increased rating claim for PTSD but granted entitlement to a TDIU with an effective date of April 1, 2021. In April 2022, the Veteran submitted VA Form 20-0995 Supplemental Claim Application seeking an earlier effective date for the award of entitlement to a TDIU and an increased rating for his PTSD. In its January 2023 rating decision, the AOJ denied both claims but also denied, "Entitlement to an earlier effective date for posttraumatic stress disorder with unspecified anxiety disorder." Rating Decision - Narrative, dated January 10, 2023. In February 2023, the Veteran submitted a HLR request regarding as to the January 2023 rating decision regarding the following issues: entitlement to an increased rating for post-traumatic stress disorder; entitlement to an earlier effective date for post-traumatic stress disorder; and entitlement to an earlier effective date for individual unemployability. VA Form 20-0996 Request for Higher-Level Review, received February 17, 2023. In the May 2023 HLR rating decision on appeal, the AOJ granted an increased rating for the Veteran's PTSD insofar as it increased the Veteran's disability evaluation from 50 percent to 70 percent, effective April 1, 2021. However, the AOJ denied the earlier effective dates for the award of a TDIU and for the recent award of 70 percent for the Veteran's PTSD. Administrative Finality, Effective Date, and Continuous Pursuit The Veteran's representative contends that the period on appeal should extend back to June 11, 2011 - the effective date for the award of service connection for the Veteran's psychiatric disability, which the AOJ most recently characterized as PTSD. Specifically, the Veteran's representative asserts that VA treatment records were generated within one year of the July 2011 rating decision that granted service connection for the Veteran's PTSD and, as such, VA had constructive possession over these records. Given the above, the Veteran's representative argues that VA erred in failing to reconsider the Veteran's disability evaluation since June 11, 2011. While the Board agrees that the period on review should, in fact, date back to June 11, 2011 - the effective date for the grant of service connection for the Veteran's PTSD - additional clarification is necessary. Administrative Finality Generally, the effective date will generally date back to the date of an earlier claim if that claim was still pending on the date of the award. See Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). Specifically, under the Legacy appeal system a claim remains pending where VA fails to fulfill a statutory duty under?38?C.F.R. §?3.156(b) to determine the character of evidence received within the one-year appeal period following issuance of a rating decision. See Beraud v. McDonald,?766 F.3d 1402, 1406?(Fed. Cir. 2014); 38 C.F.R. § 3.400(r). VA then has an obligation to decide whether the evidence received is new and material to allow finality to attach. Id. In this context, all relevant and reasonably connected VA-generated documents, in particular records created in the course of medical care provided by VA, are "received" into the record and are constructively known by VA adjudicators under the Legacy appeal system.?See Lang?v. Wilkie,?971 F.3d 1348, 1352-53?(Fed. Cir. 2020). Such evidence is considered constructively received by the AOJ, even if the adjudicator has no actual knowledge of the existence of the evidence. See id. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held in in Williams v. Collins that 38?C.F.R. §?3.156(b) was satisfied when VA issued a Statement of the Case (SOC) that listed the new evidence that was received within one year of the previous AOJ denial and then stated "no change was warranted in the previous denial." Williams v. Collins, No. 23-1840, No. 23-1840, at *8-9 (Fed. Cir. March 19, 2025). The Federal Circuit determined that under these facts, "There is thus 'some indication' that the VA considered the evidence submitted, 'implicitly' determined whether said evidence was new and material, and considered it as appropriate in connection with [the claimant's] pending claim." Id. Here, the Veteran's procedural history is analogous to those contemplated by the Federal Circuit in Williams. Specifically, evidence was constructively received within one year of the July 2011 rating decision that granted service connection for the Veteran's psychiatric disability. As noted above, VA has an obligation to decide whether the evidence received is new and material to allow finality to attach; as such, the July 2011 rating decision remained pending. The next relevant adjudicative decision of record did not occur until March 2019, in which the AOJ did not make an explicit finding that new and material evidence had been received and considered. However, the AOJ listed "VAMC (Veterans Affairs Medical Center) treatment records, Alexandria, from February 17, 2012 through July 1, 2013" as evidence it considered. The AOJ then determined, "Evaluation of anxiety disorder, not otherwise specified (claimed as sleep problems), which is currently 0 percent disabling, is continued" because the "evidence received and determined your service-connected condition(s) hasn't/haven't increased in severity sufficiently to warrant a higher evaluation." Rating Decision - Narrative, dated March 22, 2019. The Board finds no substantive distinction between the SOC in Williams and the Veteran's March 2019 as both dealt with Legacy appeals that included prior denials of claims for compensation, constructive receipt of new and material evidence within one year of said denials, and subsequent AOJ adjudicative decisions that implicitly considered and denied the same issues as the previous denials. Given the above, the Board finds that the March 2019 rating decision provided "some indication that the VA considered the evidence (constructively received within one year of the previous denial), determined whether it was new and material, and considered it in connection with the pending claim." Williams, supra. Effective Date and Continuous Pursuit Once a decision on a claim becomes final, it cannot be challenged through a freestanding claim for entitlement to an earlier effective date. See Rudd v. Nicholson, 20?Vet. App.?296, 300 (2006). However, under Appeals Modernization Act (AMA), an effective date can be based on the date a claim was first submitted, if the issue is continuously pursued through one of the administrative review avenues. 38 U.S.C. § 5110(a)(2); 38 C.F.R. § 3.2500. Thus, a Board decision is not final if the Veteran submits a supplemental claim within one year of that decision, and the claim may still be considered to be continuously pursued. See Calhoun v. McDonough, 37?Vet. App.?96 (2024). Continuous pursuit is maintained where a claimant files a supplemental claim, a request for HLR, or a request for Board review within one year of the date on which the AOJ issued a decision. 38 U.S.C. § 5110(a)(2)(B). For as far back as a claim is continuously pursued, the date of claim can, in effect, be tethered back to that date. Until recently, VA has accepted as a supplemental claim only those filed on a VA Form 20-0995, the prescribed form for a "Decision Review Request: Supplemental Claim." However, the United States Court of Appeals for Veterans Claims (Court) recently held that a supplemental claim does not need to be filed with a VA Form 20-0995, and that a claim for entitlement to a TDIU may be considered a supplemental claim for entitlement to a higher rating for a service-connected disability. Chisholm v. Collins, No. 22-7028, at *8-11 (Vet. App. March 14, 2025). In Chisholm, the Board denied entitlement to an increased rating for a service-connected disability which was then included as a disability precluding work in a claim of entitlement to a TDIU submitted within the year of said denial. Id. The Court found that a TDIU application is a request for higher ratings and, as such, the veteran's TDIU claim could be considered a supplemental claim for VA's denial of entitlement to a higher rating for that same disability as it was a "renewed (or continued) quest" for higher compensation for a previously filed claim for the same or similar benefits on the same or similar basis. Id. As discussed in the procedural history above, following the March 2019 rating decision, the Veteran filed increased rating claims until the August 2021 rating decision by submitting a VA Form 21-526EZ. However, the Veteran also filed multiple claims of entitlement to a TDIU through the August 2021 rating decision on the prescribed form for such a claim and, in each instance, attributed his inability to work - at least in part - to the effects of his psychiatric symptoms. Following the August 2021 rating decision, the Veteran filed supplemental claim via VA Form 20-0995 Supplemental Claim Application or VA Form 20-0996 Request for Higher-Level Review. Given the similarities in the Veteran's procedural history to those contemplated in Chisholm, the Board must also find that the Veteran has maintained continuous pursuit of his increased rating appeal since the March 2019 rating decision. Finally, as discussed above, the July 2011 rating decision, in effect, remained open until the March 2019 rating decision that implicitly determined that the new and material evidence that was constructively received within one year of the June 2011 decision did not warrant a compensable rating for his PTSD. As such, the March 2019 rating decision is the first rating decision to adjudicate the Veteran's initial compensable rating. Notably, the March 2019 rating decision - and all other subsequent rating decisions - was issued under the AMA and a VA denial is not final if the Veteran continuously pursues his appeal by filing a supplemental claim within one year of that decision. The ultimate consequence of Chisolm on the facts at hand is that although the Veteran submitted VA Form 21-526EZ for his increased rating claims through the August 2021 rating decision, because he submitted TDIU claims within one year of each denial of his increased rating claim during this period, he was able to maintain continuous pursuit under Chisolm. After the August 2021 rating decision, the Veteran maintained continuous pursuit through the conventional method of submitting a VA Form 20-0995 Supplemental Claim Application or VA Form 20-0996 Request for Higher-Level Review. Based on the foregoing, the period on appeal for the Veteran's claim of entitlement to an increased disability rating for his psychiatric disability begins on June 11, 2011, the date the Veteran was awarded service connection for this condition. 1. Entitlement to increased disability ratings since June 11, 2011, for service-connected PTSD. The Veteran seeks an increased disability rating for his service-connected PTSD, which his representative asserts is warranted since June 11, 2011, the effective date for service connection for this condition. See Appellate Brief, received July 8, 2023. As discussed at length above, the Board agrees that this is the appropriate period of inquiry on review. Next, the Board finds that remand is necessary to correct pre-decisional duty-to-assist errors that occurred prior to the May 2023 HLR rating decision on appeal. Notably, the pre-decisional evidence of record reflects both that the Veteran received treatment from non-VA medical providers and that received disability payments from the Social Security Administration (SSA). See SSA Profile and Benefit Data, received August 13, 2021; Third Party Correspondence, received February 17, 2023. However, the record available for consideration under the AMA does not show that the VA attempted to secure all relevant non-VA treatment notes or medical records associated with the Veteran's application for SSA disability benefits. In particular, the evidence of record prior to the March 2019 rating decision is practically devoid of relevant medical records despite references of such treatment in subsequent VA and private medical opinion statements. Unfortunately, the Board cannot grant the Veteran's claim to the full extent desired and further notes that the missing records identified above would be helpful in making a determination for this claim. Therefore, the Board finds that the AOJ's failure to assist the Veteran in obtaining all relevant medical and disability records prior to adjudicating the claims herein constitutes a pre-decisional duty-to-assist error that must be corrected on remand. Next, the Board determines that the AOJ committed a pre-decisional duty-to-assist error in failing to obtain adequate VA medical opinions. Specifically, the VA medical opinions of record seemingly relied upon an incomplete medical record in arriving at their assessments. Moreover, none of the VA medical opinions meaningfully discussed the severity of the Veteran's mental health functioning prior to the March 2019 and evidence of record - including the Veteran's lay statements and various private opinions - are insufficient to grant the Veteran's claim in full. As such, remand is also necessary to obtain an adequate VA medical opinion that contemplates the severity of the Veteran's mental health symptoms for the entire period on appeal. 2. Entitlement to an earlier effective date for the grant of entitlement to a TDIU. The Veteran also contends that he is entitled to an earlier effective date for the award of a TDIU. See id. Notably, the Veteran became eligible for a TDIU on a schedular basis on April 1, 2021, which corresponds with the effective date of his rating increase to 70 percent for his service-connected PTSD. In the May 2023 rating decision on appeal, the AOJ stated, "We find that your mental health symptoms support entitlement to individual unemployability without regard for other service-connected disabilities." Rating Decision - Narrative, dated May 22, 2023. As such, a decision on the remanded issue of entitlement to increased ratings for the Veteran's service-connected psychiatric disability could significantly impact a decision on the issue of whether an earlier effective date for entitlement to a TDIU is warranted. Therefore, the two issues currently on appeal herein are inextricably intertwined. The appropriate remedy where pending claims are inextricably intertwined with claims currently on appeal is to remand the claims on appeal pending the adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, adjudication of the claim of entitlement to an earlier effective dated for a TDIU must be deferred until the development directed on the Veteran's increased rating claim for his psychiatric disability has been completed. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file any and all relevant private treatment records for the appeal period, which commenced on June 11, 2011. ** All attempts to obtain these records must be documented in the record, and the Veteran must be notified of the unavailability of any records in accordance with 38 C.F.R. § 3.159(c)(1). 2. Obtain and associate with the file all records pertaining to the Veteran concerning a claim for disability benefits from the?Social Security Administration. **All attempts to obtain these records must be documented in the record, and the Veteran must be notified of the unavailability of any records in accordance with?38 C.F.R. § 3.159(e). 3. Once Directives 1 and 2 are complete, schedule the Veteran for VA examinations with the appropriate examiners to determine the current nature and severity of his service-connected psychiatric disability. A complete history from the Veteran should be obtained and recorded. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination and this review should be acknowledged in the report. Following a review of the complete claims file, including, but not limited to the evidence discussed above, the examiner is asked to respond to or otherwise discuss the following: (a.) The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected psychiatric disability. The examiner is advised that the Veteran currently has the following disability ratings for his service-connected PTSD during the relevant period on appeal: 1. June 11, 2011, to July 15, 2019: 0 percent rating; 2. July 15, 2019, to March 31, 2021: 30 percent rating; and 3. April 1, 2021 to present: 70 percent rating. **The examiner must provide an assessment for the entire appeal period since June 11, 2011. 4. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an earlier effective date for a TDIU. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cross, A. 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.