Citation Nr: 18160329
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-53 370
DATE:	December 26, 2018
REMANDED
Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) and adjustment disorder with anxiety and depressed mood is remanded.
Entitlement to an effective date earlier than January 24, 2014, for the award of an increased evaluation for PTSD and adjustment disorder with anxiety and depressed mood is remanded.
Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1968 to March 1970.  These matters are before the Board of Veterans’ Appeals (Board) from a June 2014 decision.  
In October 2016, the Veteran submitted VA Form 21-0958, Notice of Disagreement (NOD), with a January 2016 rating decision that denied an increased rating for service-connected duodenal ulcer.  The Board’s review of the claims file reveals that the Agency of Original Jurisdiction is in the process of taking action on this NOD.  As such, the Board will not take any further action on the matter, and it will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case (SOC) is issued.
Regarding the issue of entitlement to TDIU, the Board recognizes that this issue has been separately claimed and adjudicated in a January 2016 rating decision.  The Veteran filed a NOD on the matter in October 2016.  Nevertheless, the record reflects that the Veteran has asserted he is unemployable due to his service-connected PTSD.  As the matter of the rating to be assigned for that disability is presently before the Board, the issue of entitlement to TDIU is also within the Board’s jurisdiction.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).
PTSD
The Veteran contends that he is entitled to a rating in excess of 50 percent for his PTSD and earlier effective date for the increased 50 percent rating.  The claims file is missing VA medical records from around August 2007 to September 2013, and from September 2013 to January 2015.  These records could contain evidence pertinent to the claims for an increased rating and an earlier effective date for the award of a 50 percent increased rating pursuant to 38 C.F.R. § 3.400(o).  The September 2013 record notes that the Veteran was being seen for followup treatment, indicating that there may be additional treatment records.  A remand is necessary to obtain these records.  38 U.S.C. § 5103A; Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
The Veteran last attended a VA psychiatric examination in August 2016.  In a written statement received in May 2018, the Veteran reported experiencing symptoms of memory loss and concentration difficulties that appear worse than what was reported on the August 2016 VA examination.  As such, a new psychiatric examination should also be completed on remand.

 

TDIU
With regard to the claim for TDIU, in the Veteran’s September 2015 formal claim for a TDIU, he indicated that he last worked full-time in 2008 as a driver and part-time for a year after as a repairman.  However, in an August 2014 VA psychiatric examination report, it was noted that the Veteran has been managing his own small cattle ranch for the past seven years.  A subsequent June 2017 private vocational expert noted that the Veteran last worked in 2008 and found that the Veteran was completely disabled from the workforce due to PTSD beginning in 2013.  
Given the conflicting evidence regarding whether the Veteran is currently working and the nature of the employment; the Board finds that a remand is necessary for additional clarification and to request that the Veteran provide an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) that includes details regarding his employment history. 
The matter is REMANDED for the following actions:
1.  Request that the Veteran complete and return an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability).  Ask the Veteran to clarify and provide details regarding the nature of his self-employment concerning his cattle ranch.
2.  Obtain all of the Veteran’s VA treatment records for the period from August 2007 through January 2015. 
3.  Also obtain the Veteran’s VA treatment records for the period from August 2016 to the present. 
4.  After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD and adjustment disorder with anxiety and depressed mood.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  

 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Bonnie Yoon, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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