Citation Nr: A25035389 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230411-337865 DATE: April 16, 2025 ORDER Entitlement to an effective date of December 14, 2015, but no earlier, for the assignment of a 70 percent evaluation for PTSD is granted. REMANDED Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has continuously pursued his claim of PTSD since December 14, 2015. 2. Throughout the appeal period, the Veteran's PTSD symptoms have been manifested by occupational and social impairment in most areas such as work, family relations, judgment, thinking or mood; they have not more closely approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an effective date of December 14, 2015, but no earlier, for a 70 percent disability rating for PTSD have been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service with the United States Marine Corps from March 1990 to June 1993, to include combat service during Operation Desert Shield and Operation Desert Storm. Among other commendations, the Veteran was awarded the Combat Action Ribbon, Kuwait Liberation Medal, and Southwest Asia Service Medal (2 stars). These matters are before the Board of Veterans' Appeals (Board) from a May 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2022 agency of original jurisdiction (AOJ) 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. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim or increased rating for PTSD and earlier effective date for an increased rating for PTSD, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board finds the issue of entitlement to a TDIU has been reasonably raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, because the Board is remanding this claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). A pending Privacy Act/Freedom of Information Act (FOIA) request was withdrawn in January 2025 correspondence by the Veteran's representative. The Board notes that the Veteran's attorney has raised general boilerplate arguments regarding VA's duty to assist. However, these arguments do not raise any specific argument of a duty to assist error with the claim on appeal. Therefore, the Board will not address such boilerplate arguments further. The Veteran's attorney has raised a boilerplate allegation of a constitutional due process deficiency. The Board finds this generalized argument to be vague and conclusory because it fails to specify any particular procedural due process issue. The Board also finds that VA satisfied all relevant due process requirements as to the claim. Entitlement to an effective date earlier than November 9, 2021 for the evaluation of 70 percent for PTSD The Veteran contends that he is entitled to an effective date prior to November 9, 2021 for the 70 percent disability rating for his PTSD. In general, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In the modernized review system, an effective date can be preserved if the claim is continuously pursued by filing an appropriate administrative review option, generally within one year from when the decision was issued. 38 C.F.R. § 3.2500 (c). If the claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500 (h). For decisions rendered after a HLR by the AOJ, continuous pursuit can be established by filing either a supplemental claim or a VA Form 10182. The Veteran initially filed his claim for service connection for PTSD on December 14, 2015, in a VA Form 21-526 EZ Fully Developed Claim. In a January 5, 2016 Administrative Decision, the Veteran's character of discharge was found to be dishonorable. In a January 19, 2016 correspondence, the Veteran was notified that his PSTD claim was not eligible for processing under the FDC program and that it would br processed under standard claim processing procedures. He was informed that new and material evidence was required to reopen the September 1995 denial of Veteran status. In May 2016, VA notified the Veteran that the information he had submitted was not new and material, that the issue of Veteran status could not be reopened, and that his claim for benefits was denied. In July 2016 the Veteran filed a Supplemental Claim to reopen his claim for service connection to include PTSD. In October 2016, VA informed the Veteran that his claim could not be granted because he was still barred from receiving VA benefits. In December 2016 the Veteran filed a Notice of Disagreement as to the character of discharge. A Statement of the Case (SOC) was issued in April 2018 and the Veteran perfected his appeal. In December 2019 the Board found new and material evidence had been submitted, reopened the Veteran's petition as to his character of discharge, and remanded the claim as to whether the Veteran's discharge was a bar to VA benefits. In May 2020 a Supplemental SOC (SSOC) was issued. In a July 2020 Board decision, the Veteran's discharge from service was found not to be a statutory or regulatory bar to VA Benefits. The August 2020 Administrative Decision found the Veteran's period of active-duty service from March 1990 to June 1993 to be honorable for VA purposes and not a bar to VA benefits under 38 C.F.R. § 3.12(d)(4). Based on the above, the RO issued a September 2020 rating decision which granted service connection for PTSD and assigned a 50 percent disability rating as of December 14, 2015. The Veteran filed a June 2021 VA Form 20-0996 Higher Level Review (HLR) which argued for an increased rating for his PTSD in excess of 50 percent. In August 2021 the claim was returned to the AOJ for additional development. A supplemental claim rating decision was issued in December 2021 which granted the Veteran an increased rating for his PTSD to 70 percent as of November 9, 2021, the date of his VA examination. In May 2022 the Veteran filed a HLR which argued for an earlier effective date for the 70 percent disability rating prior to November 9, 2021. The RO issued a May 2022 rating decision which denied the earlier effective claim and denied an increased rating. In April 2023, the Veteran submitted his Notice of Disagreement arguing for both an earlier effective date for his increased rating of 70 percent prior to November 9, 2021, and an increased rating for his PTSD in excess of 70 percent. The Board finds that the Veteran has continuously pursued his claim since initially filing for service connection on December 14, 2015. Thus, the Board turns to whether the Veteran is entitled to an effective date earlier than November 9, 2021, for the 70 percent disability rating for his service-connected PTSD. Entitlement to an evaluation in excess of 70 percent for PTSD The Veteran contends he is entitled to a total disability rating for his PTSD. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. Fenderson v. West, 12 Vet. App. 119 (1999) (addressing initial increased rating claims). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. For increased rating claims, an effective date should not be assigned mechanically based on the date of a diagnosis or a VA examination report. Rather, all the facts should be examined to determine when an increase in a veteran's disability can be ascertained. DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). When all the evidence is assembled, if there is a balance between positive and negative evidence, equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. But when the evidence persuasively favors one side or the other, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Veteran's PTSD disability rating is governed by the General Formula for Mental Disorders (General Formula) under 38 C.F.R. § 4.130, DC 9411. A 70 percent disability rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A total or 100 percent disability rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. Evaluations under §4.130 are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. The Board finds that the Veteran is entitled to a 70 percent disability rating for entire appeal period, but no higher, for his PTSD. The Veteran submitted a statement from January 2016 in which he reported his current symptoms of nightmares, depression, sleep impairment, anxiety and other issues and that he had begun seeking help from VA. The Veteran submitted statements from family members to include his brother, wife, and sister from January 2016, February 2016, and March 2016. His brother indicated that the Veteran had been dealing with severe depression with long periods of grief and sadness which was much longer when compared to any issues he had prior to his active duty. He was also noted with an inability to focus and levels of indecisiveness. His wife noted the Veteran had streaks of anger, sadness, and isolation behavior. He would constantly look around and would seem very anxious. He had noted incidents of paranoia and feeling down more often than normal and would even discourage her from doing things he did not have control over or visibility over. He continued to become more explosive in his anger and isolating and would not discuss his time in the military. She noted his depression, anger, and anxiety and that he did his best to be a wonderful husband and father. His sister reported that the Veteran had changed after service, and he was now nervous and uncomfortable and isolated himself. She reported he had difficulty re-adjusting with stress, insomnia, and depression. In March 2016 the Veteran reported current symptoms of nightmares, depression, sleep issues, anxiety, and other issues that was getting worse with time. The Veteran submitted a March 2016 PTSD Disability Benefits Questionnaire (DBQ), which diagnosed the Veteran with PTSD and other specified depressive disorder with anxious distress. The private psychologist was able to differentiate the symptoms between each diagnosis but was unable to determine what portion of each diagnosis caused the level of indicated impairment. The Veteran's PTSD symptoms included sleep impairment, exaggerated startle response, memory loss, flashbacks, distressing memories, distressing dreams, issues dealing with emotions. The Veteran's depression symptoms included depressed mood, periods of tearfulness, guilt, and feelings of failure. The Veteran's symptoms were not severe enough to interfere with occupational and social functioning. His main area of disturbance was found as sleep impairment which was attributed to both PTSD and his depression diagnoses. The doctor noted the Veteran reporting obsessive rituals and panic symptoms of checking and re-checking locks in his home, searching around the house outside, and listening for intruders while attempting to sleep. He reports nightmares and fighting in his sleep, along with experiencing olfactory triggers with burnt smells. The examiner found symptom reports consistent with panic attacks along with periods he cannot remember and feelings of confusion, with some periods of tearfulness. The doctor noted that while the Veteran was able to sustain employment, he continued to be troubled daily by symptoms that do not allow normal sleep. His symptoms for VA purposes were documented as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships with social being circled, and obsessional rituals which interfered with routine sleep activities. The Board finds the submitted DBQ to be with significant probative weight as it is consistent with the Veteran's and his family's statements regarding his symptoms and their severity. In June 2016 the Veteran submitted a statement that listed symptoms of his PTSD as anger, anxiety, chronic sleep problems, denial, depression, difficulty making decision, emotional numbing, flashbacks, guilt, inability to make and keep friends, inappropriate behavior, isolation, lack of emotions, memory loss, nervousness, panic attacks, problems with communication, sense of helplessness, suspiciousness, and being unable to share feelings. The Board finds the Veteran's statements and those submitted from his family to be competent and credible, and with probative weight. The Board notes the Veteran's statements have remained consistent as to his PTSD symptoms and their severity and frequency throughout the appeal period. The Veteran in August 2016 submitted records of counseling services from 2015 to 2016 which noted symptoms of nightly panic symptoms, nightmares after panicked exhaustion, checking and re-checking the perimeter, anxiety, depression, and dissociation symptoms. In February 2020 the Veteran underwent a VA PTSD examination. The examiner diagnosed PTSD and mild alcohol use disorder and found it was not possible to differentiate their symptoms. The examiner explained when intoxicated the Veteran may exhibit mood lability, impaired social functioning and/or impaired attention. The examiner was not able to differentiate the Veteran's level of impairment from each diagnosed disorder as both conditions have some shared symptoms and can be associated with impaired social or occupational functions. The examiner concluded that there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was noted as being married to his second wife in 2002 and got "along for the most part" but vaguely referenced some marital strain. He has two children, and his family was reported as his social support system. Hobbies include golf. He has a master's degree in urban studies. Since leaving the military he worked some warehouse jobs, worked at a gym, and delivered packages for Uber and Amazon. He noted no attendance or performance problems at work. His consumption of 3 to 5 glasses of vodka every other day was described with cravings and increased tolerance. The Veteran noted when he drank, he isolated himself with a negative impact on relationships but denied any impact at work. The Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, suicidal ideation. His behavioral observations were noted as being oriented, with appropriate dress, eye contact, normal speech, he was cooperative, with appropriate affect, lonely and depressed mood, and feeling down a couple times a week. He expressed depressed symptoms of sadness, low energy, sleep issues, appetite changes, tired, loss of pleasure, guilt, agitation and worthlessness and suicidal thinking without current intent or plan. He had no reports of obsessions, compulsions, or manic symptoms. In addition to the above the Veteran reported engaging in fewer activities and feeling detached from family and friends. He reported his wife saying he was always angry. He also reported double and triple checking locks in the house and having an exaggerated startle response to popping noises and cars backfiring. He also endorsed concentration deficits as having issues focusing on one thing at a time. The Veteran described that being sleepy and tired intermittently lowered his productivity at work. He also reported disliking people and being around them, isolating himself, being emotionally restricted, and having difficulty forming close relationships. The examiner noted that the Veteran did not screen positive for suicidal ideation and noted his children were a protective factor. Psychological testing indicated possible over-reporting based on an unusual combination of responses associated with non-credible memory complaints, and possible under-reporting of mental health symptoms in that the Veteran was presenting himself in a very positive light by denying several minor faults and shortcomings most people acknowledge. For these reasons, the substantive scales were interpreted with caution. His depressive symptoms were considered secondary to his PTSD because of the temporal relationship between the onset of the symptoms and his stressors. The Veteran described some difficulty in his social interactions including with his wife but has been able to maintain generally acceptable work behaviors with sleep issues causing deficits at times and intermittently lowering his productivity. The Board finds the examiner's opinion to have significant probative weight as it was based on the review of the Veteran's claims file, a clinical interview and psychological testing. However, the Board notes that the symptoms reported and noted by the examiner are more consistent with a level of occupational and social impairment in most areas, even with the reports of over and under-reporting. The Veteran's VA treatment records in August 2021 noted a mental status examination of the Veteran with reported symptoms of hypervigilance, anxiety, sleep impairment, nightmares, isolation and withdrawal behaviors impacting his relationships. He also reported only working part time due to these symptoms. He was found to be oriented, alert, well groomed, dysthymic mood, with normal thought processes, and no audio or visual hallucinations or hopelessness. In September 2021 he reported impairment in social, occupational and other areas of function and a nearly complete degradation of familial relationships, with no outside relationships and an inability to work. He reported heavily relying on alcohol to cope. He reported increasing irritability, spending most of his time in a camper or van outside of the home, and the need to secure the perimeter each time he goes outside to include under the car. The Veteran underwent a VA examination for PTSD in November 2021. The examiner diagnosed PTSD and chronic adjustment disorder with mixed anxiety and depressed mood. The examiner noted the Veteran was especially bothered by his angry outbursts and believes others see him as combative and that this makes it difficult to keep a job or friends. The Veteran reported daily conflict between himself and his wife. He continued to live with his wife and children, but typically secluded himself in the basement or slept in his van. He was noted as being depressed and worried over the prospect of a separation. He reported his daughter as his current major source of support, at the time of the examination she was 17 years old, and the Veteran was worried about when she would leave for college. The Veteran attended weekly counseling. The examiner noted it was impossible to tell if the Veteran's depression was from PTSD or strife in his household. The symptoms of PTSD and adjustment disorder heavily overlapped. The separate diagnosis of adjustment disorder was suggested to highlight his marital difficulties. The Veteran's mild alcohol use disorder is also noted as the Veteran reported 4 to 5 drinks at a time, at least every other day. However, this examiner noted the cause of the Veteran's drinking was more likely his own willful misconduct and could not be definitively linked his PTSD or adjustment disorder, but it was found likely that his mental health symptoms exacerbate his alcohol use disorder. The examiner noted the inability to differentiate the symptoms of each diagnosis above, and found his alcohol use exacerbated his depression, marital discord, poor judgment, and problems with impulse control. But the examiner found the Veteran's adjustment disorder was in response ot the marital discord and was separate from the PTSD. The examiner noted due to the overlap in symptoms between PTSD and adjustment disorder the impairment caused by each disability could not be attributed to one disorder or the other. The Veteran's symptoms for rating purposes were noted as depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, flattened affect, impaired judgment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control such as unprovoked irritability with periods of violence. His occupational and social impairment level was found to be with reduced reliability and productivity. His behavioral observations were noted as being depressed and occasionally tearful, he never smiled or showed any sign of positive affect, his speech was unremarkable, and he had goal directed thinking. The examiner found the Veteran's adjustment disorder and alcohol use disorder were separate conditions unrelated to the Veteran's PTSD. However, the examiner found that the symptoms of the Veteran's PTSD and adjustment disorder overlapped, and his alcohol use disorder exacerbated his mental health symptoms. As such the examiner did not differentiate between symptomatology associated with the Veteran's PTSD and the adjustment disorder and alcohol abuse. The Board finds the November 2021 VA examination to be competent, credible, and with significant probative weight. However, the Veteran's symptoms for VA rating purposes indicate an impairment level which is more closely found to be impairment in most areas when considering the frequency, duration, and severity of the noted symptoms. As an initial matter, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the Board will attribute all the Veteran's psychiatric symptoms to the PTSD for the purposes of assessing the severity of that disability. The Board finds the Veteran's PTSD is manifested by social and occupational impairment in most areas. Additionally, the Board notes the severity, frequency, and duration support a 70 percent disabling for the entire appeal period. The Board acknowledges the Veteran's symptoms of irritability, and withdrawal, anger management, impairments in social relationships, sleep impairment, obsessional rituals of checking the perimeter interfering with his sleep, avoidance of people, hypervigilance, and exaggerated startle response. The Board finds the Veteran's disability picture for his PTSD more closely resembles a 70 percent disability rating. The Veteran's PTSD does not meet the next higher rating of 100 percent disabling at any point during the appeal period. Even when considering a holistic view of his PTSD and the frequency, severity, and duration of his PTSD symptoms the Board finds the Veteran does not meet the requirements of total occupational and social impairment. The Veteran has always been noted as alert, oriented, and never endorsed symptoms such as delusions or hallucinations. The Veteran during the appeal period was never found to be persistently in danger of hurting himself or others and was noted as being capable of performing activities of daily living. However, although this results in impairment in most areas this does not rise to the level of total occupational and social impairment as it does not result in gross impairment in thought processes or communication nor in grossly inappropriate behaviors. Although the Veteran tends to isolate himself by retreating to his basement or his van, he still maintains a relationship with his wife, albeit strained. His social support network is limited, but he is close with his daughter. The Board finds he is not totally socially impaired. Furthermore, although the Veteran reported feelings of worthlessness and suicidal ideation in the February 2020 VA examination, he has never been found to be in persistent danger of harming himself at any time. The Board also notes the Veteran's irritability and anger have been reported to have increased during the appeal period and over time. However, this does not support a 100 percent disability rating. The Veteran he has not been found to be a danger to others, in fact he instead isolates himself, which causes issues with his relationships which is more in line with a 70 percent disability rating. The Veteran also has never been found to be less than oriented to time or place. His memory loss is described as forgetting recent events, directions, and "names". VA examiners have described his memory loss as mild. The Board finds that the Veteran's memory loss does not approximate memory loss of his own name, close relatives, or his own occupation. As such the Board finds the Veteran has continuously pursued his claim of PTSD since December 14, 2015, and the severity of his disability has manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, throughout the appeal period. As such, entitlement to an effective date of December 14, 2015, for the assignment of a 70 percent rating for service-connected PTSD is granted. REASONS FOR REMAND Entitlement to a TDIU The Veteran does not contend he is entitled to a TDIU. However, the issue of unemployability due to PTSD is raised by the record. In the Veteran's February 2020 VA examination for PTSD his impairment level was found to be occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He reported since service he had a few warehouse jobs, cleaning and sitting at a gym, and package deliveries with Amazon and Uber with no issues of performance and attendance at work. His daytime sleepiness due to his sleep impairment was noted to intermittently lower his productivity at work. The examiner indicated the Veteran was able to maintain generally acceptable work behaviors but sleep deficits at times intermittently lowered productivity. There are contemporaneous treatment records that show his sleep impairment affected his productivity and that he had to work part time and then stop working completely because of his mental health symptoms. See CAPRI records submitted August 2021. See CAPRI records submitted May 2023. He reported in September 2021 that he was not working anymore due to his PTSD symptoms. See Medical Treatment Records Government Facility submitted November 2021. In the November 2021 VA examination for PTSD the Veteran reported he had not worked in 1 year beyond occasional part time jobs such as with Uber and Amazon deliveries. However, the Board notes that the Veteran's claims file does not contain information the Board would need to adequately address the Veteran's entitlement to a TDIU. Therefore, a remand is necessary to invite the Veteran to submit VA Form 21-8940; Application for Increased Compensation Based on Unemployability. A remand is warranted to correct the pre-decisional duty to assist error of not obtaining a VA Form 21-8940. The matters are REMANDED for the following action: 1. Request that the Veteran submit a VA Form 21-8940; Application for Increased Compensation Based on Unemployability. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teich, 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.