Citation Nr: 25007697 Decision Date: 06/09/25 Archive Date: 06/09/25 DOCKET NO. 17-29 292A DATE: June 9, 2025 REMANDED Entitlement to an increased rating for post-traumatic stress disorder (PTSD) beginning May 9, 2012, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), to include as solely due to the Veteran's service-connected PTSD, prior to February 15, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January to July 1991 and February to June 1992, including service in the Persian Gulf from February to June 1991. His decorations include the Southwest Asia Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 and May 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran did not file a notice of disagreement within one year of the October 2014 rating decision, the August 2015 Correspondence constitutes new and material evidence received within one year of the rating decision. See 38 C.F.R. §?3.156(b); Bond v. Shinseki,?659 F.3d 1362?(Fed. Cir. 2011); see also Buie v. Shinseki,?24?Vet. App.?242, 251-52?(2010). Accordingly, the Board finds that the appeal for an increased rating for PTSD has been pending since the October 2014 rating decision. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2022, September 2023 and March 2025. The Board remanded the Veteran's claims in a December 2022 and March 2024 for additional development. 1. Entitlement to an increased rating for PTSD throughout the appeal is remanded. The Veteran's PTSD is rated at 30 percent disabling from November 22, 2004, and 70 percent disabling, effective October 1, 2014. His PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that this appeal stems from a May 9, 2012, supplemental claim in which the Veteran requested an increased rating for his service-connected PTSD. During the March 2025 hearing, the Veteran testified that it would be too traumatic to undergo another VA examination. However, the Veteran testified that he believed the 70 percent rating for his PTSD should go back to 2012, the date of his supplemental claim. As will be discussed below, he also seeks entitlement to a TDIU due to his psychiatric disability alone throughout the appeal. The Board finds that a retrospective medical opinion from a VA examiner is necessary to better assess the nature, extent, manifestations and severity of the Veteran's psychiatric disability for the period on appeal, i.e., from May 9, 2012, to present. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). Further, a review of the Veteran's file shows that, the most recent VA treatment medical records associated with the Veteran's file were uploaded in August 2024. Records of his VA treatment are constructively before VA. As such, remand is necessary to obtain updated medical records. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 2. Entitlement to a TDIU, to include as solely due to the Veteran's service-connected PTSD, prior to February 15, 2019, is remanded. The Veteran contends that he is entitled to a TDIU prior to February 15, 2019, to include as due to his service-connected PTSD alone. In a December 2022 decision, the Board awarded the Veteran a TDIU due to his service-connected PTSD alone. As the Veteran has a 70 percent disability rating for his service-connected PTSD, effective October 1, 2014, the Board notes that his PTSD meets the schedular criteria for an award of TDIU beginning October 1, 2014. 38 C.F.R. § 4.16. On his most recent TDIU application, the Veteran reported that he last worked full-time in February 2002. See VA Form 21-8940, October 2023. The Veteran noted that he worked in healthcare as peer support for other Veterans from September 2012 to March 2019. During this period, the Veteran stated that he worked 32 hours a week, lost 420 days of work due to illness, and his highest gross earnings per month was 2000 dollars. On his October 2022 TDIU application, the Veteran reported that a requirement for this employment was having a disability, and his duties were structured to work with his PTSD symptoms. The Veteran stated that this was sheltered employment and should not be considered as ability to work in any non-sheltered employment. During the October 2022 hearing, the Veteran testified that he can be a danger to others, has delusions, is more likely than in the past to attack someone, and is at risk of attacking a student or another teacher if he worked. See also Correspondence, August 2015. The Veteran reiterated these assertions during the September 2023 hearing. The Veteran testified that he worked but he had challenges. He stated that President Obama instituted a program through the VA that would take disabled Veterans and carve out a job for them. The Veteran explained that in his case, his job was created by an executive order by the President, but it was for people who had mental conditions, which was a stipulation of the job. He stated that his anger management, depression, and lack of motivation were taken into account and a position was created for him in which he could function at VA. Additionally, the Veteran's employer noted that the Veteran was employed from 2012 to 2019 on a full-time basis earning approximately $45,500 per year in income. The employer noted that the Veteran was not given any concessions by reason of age or disability. See also VA 21-4192 Request for Employment Information, January 2023. Most recently, the Veteran testified before the undersigned Veterans Law Judge in March 2025. The Veteran testified that until 2002, he worked for the Chicago school system but was laid off. He stated that he worked intermittently until 2007 and took time off for "mental health days." In 2011 or 2012, he testified that he was homeless and unable to get a job that would accommodate his PTSD until the President's program for Veterans where his disability was taken into account. The entire time he worked for VA, the Veteran noted that he had absences on a regular basis, felt feelings of paranoia and isolated himself, and had confrontations with co-workers. The Veteran stated that his peer-support position was exempt from quotas, and he had sheltered employment with VA. The Veteran is assigned a combined 30 percent rating for his service-connected disabilities from November 22, 2004, a combined 70 percent rating from October 1, 2014, a combined 100 percent rating from November 29, 2017, and a combined 70 percent rating from February 1, 2018. As such, the Veteran meets the schedular requirements for TDIU beginning October 1, 2014. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Because the Veteran's TDIU claim is inextricably intertwined with the claim remaining on appeal, appellate consideration of entitlement to TDIU rating is deferred pending resolution of the remaining claim on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As to any period wherein the Veteran does not meet the minimum schedular requirements for TDIU, 38 C.F.R. § 4.16(b) is for consideration. However, the Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service, for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). As to TDIU, the AOJ must consider action consistent with Snider v. McDonough, 35 Vet. App. 1 (2021). Given the holding in Snider, and to ensure the Veteran has full consideration, the Board finds remand necessary to refer the claim to VA's Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: 1. Obtain all outstanding medical records. 2. Forward the claims file to a VA examiner to provide a retrospective opinion regarding the nature, extent, severity and manifestations of the Veteran's psychiatric disability since May 9, 2012, to specifically include the impact on the Veteran's ability to work since that time. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Unless the schedular criteria for TDIU have been met, refer the Veteran's case to the Director, Compensation Service, for extraschedular consideration of the Veteran's TDIU claim pursuant to 38 C.F.R. § 4.16(b). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leigh, Sara 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.