Citation Nr: A25041283 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 230902-374447 DATE: May 6, 2025 REMANDED Entitlement to an initial disability rating in excess of 70 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, recurrent, unspecified, with anxious distress, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The appellant served honorably in the United States Army from November 2004 to January 2012, with service in Southwest Asia in fire pay, imminent danger pay, and/or hazardous duty pay locations. Procedural History These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2023 Higher-Level Review (HLR) of a February 2023 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which granted entitlement to service connection for an acquired psychiatric disorder, assigning a 30 percent disability rating, effective March 23, 2017. Entitlement to service connection for an acquired psychiatric disorder with an assigned 30 percent disability rating was previously granted in a February 2023 rating decision. The August 2023 HLR increased the appellant's disability rating from 30 percent to 70 percent disabling, effective from March 23, 2017. The appellant filed timely a VA Form 10182, Notice of Disagreement (NOD) in September 2023, electing the Hearing Docket. However, prior to any scheduled hearing, the appellant filed a second VA Form 10182 in November 2023, this time electing the Direct Review Docket. The Board interpreted this second VA Form 10182 as a valid docket switch request, and the appellant was notified of such in a December 2023 letter. See 38 C.F.R. § 20.202(c)(2). The Board notes that following the November 2023 VA Form 10182, the appellant continued to submit additional Form 10182s. One of these desired to "[c]hange the effec[tive] date [for the grant of service connection for PTSD] to March 23, 2017. See VA Form 10182, March 11, 2024. It appears that this addresses the fact that the appellant's acquired psychiatric disorder was originally granted as major depressive disorder, recurrent, unspecified, with anxious distress, and was subsequently modified to PTSD. See Rating Decision, February 7, 2023; Rating Decision, February 29, 2024. This distinction has no practical effect, as both PTSD and major depressive disorder are rated under the General Rating Formula of Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9434. Regardless, the appellant's acquired psychiatric is currently rated as PTSD, considered 70 percent disabling back to the date of the intent to file, March 23, 2017. See Rating Codesheet, November 18, 2024. Applicable Evidentiary Windows As the appellant has selected the Direct Review Docket on the NOD, the Board may only consider the evidence of record before the AOJ at the time of its decision. See 38 C.F.R. §§ 20.300(a), 301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD (VA Form 10182). 38 C.F.R. § 20.301. The appellant has not filed such a request. If evidence was associated with the claims file during a period when additional evidence was not allowed, the Board has not considered it in this decision. 38 C.F.R. § 20.300. However, as a remand of these matters is warranted, any such evidence will be considered by the AOJ on remand. Although further delay is regrettable, a remand is required in order to correct a pre-decisional duty to assist error in the form of failure to obtain relevant medical records. 1. Entitlement to an increased disability rating in excess of 70 percent for an acquired psychiatric disorder is remanded. During the period on appeal, the appellant was afforded a single VA examination of his acquired psychiatric disorder. See VA Psychiatric Examination, January 30, 2023. During this examination, the appellant reported that he was currently in mental health treatment and was proscribed several psychiatric drugs by a psychiatrist through E.C. Id. However, the records of his counselor and his psychiatrist are not currently associated with the claims file, and it appears VA made no attempts to obtain them. These records could be highly relevant, as their contents could potentially justify a higher disability rating. Because VA was on notice that these records existed prior to the rating decision on appeal, the failure to attempt to obtain them constitutes a pre-decisional duty to assist error. 38 C.F.R. § 21.1032. For this reason, a remand is required in order to attempt to obtain these records, as well as allow the AOJ to perform any other needed evidentiary development that might be required once the records are obtained. 38 C.F.R. § 20\.904(a). 2. Entitlement to a TDIU is remanded. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the record raises TDIU, as the Veteran has indicated that he is unable to work as a result of his service-connected acquired psychiatric condition. See VA Psychiatric Examination, January 30, 2023. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. The appellant is currently entitled to TDIU, effective the date of a stand-alone claim on September 7, 2023. See Rating Codesheet, November 18, 2024. A partial grant of the benefit sought on appeal does not affect the pendency of that appeal. See AB v. Brown, 6 Vet. App. 35 (Vet. App. 1993). Accordingly, this issue remains on appeal at this time. However, a remand of the issue of an increased disability rating for the appellant's acquired psychiatric condition is necessary, and these issues are inextricably intertwined. See Payne v. Wilkie, 31 Vet. App. 373 (Vet. App. 2019). Accordingly, a remand of the issue of TDIU is also necessary. 38 § 20\.904(a). The matters are REMANDED for the following action: 1. The AOJ should contact the appellant and all current representatives and request their assistance in identifying the outstanding relevant records. Specifically, the AOJ should attempt to obtain the records of Mr. S. and Dr. B at E.C. See VA Psychiatric Examination, January 30, 2023. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the appellant's claims file. 2. After the development in directive 1 is completed, the AOJ should perform any additional development necessitated by those records. 3. Thereafter, readjudicate the claims. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Alexander Maisel, Associate 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.