Citation Nr: 1302927 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 05-09 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from August 1979 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was previously before the Board in December 2006, April 2008, and June 2009, at which times it was remanded for further development and adjudication. The case was again before the Board in May 2010 wherein the Board denied the benefit sought on appeal. The Veteran appealed the Board's May 2010 decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2010, her representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. In May 2011, the Board again remanded the case for further development and adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to a TDIU. Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Pursuant to the Board's May 2011 remand instructions, the Veteran was afforded a VA mental disorders examination in May 2012. The VA examiner acknowledged the Veteran's belief that her psychiatric symptoms prevented her from obtaining or maintaining employment; however, the examiner opined that these symptoms were less likely than not to prevent the Veteran from obtaining and maintaining employment. Although the examiner conceded that these symptoms would certainly make it more difficult for the Veteran to function in a work setting due to an overall reduced rate of productivity and reliability, the Veteran's diagnoses would not preclude successful employment with the appropriate accommodations and when placed in an appropriate environment. Specifically, the examiner noted that the Veteran's knowledge of computers and the Internet could allow her to work from home and avoid the social work environment, though she could also find employment in other capacities not related to computers where there would be minimal social interaction and a low-stress environment. The examiner also indicated that part-time employment would allow the Veteran the freedom to work for limited periods of time during the day. The examiner emphasized that the Veteran was also experiencing increased stress unrelated to her service-connected diagnoses that contributed to her depressed mood (i.e., her mother's declining health and her spouse's recent layoff and pending legal charges). Although the Veteran indicated that she experienced significant stress adapting to stressful situations, her social avoidance prevented the examiner from accurately determining whether she was incapable of handling stressful interactions. Based on what was known about individuals living with bipolar disorder, the examiner concluded that it was at least as likely as not that the Veteran could successfully live with her diagnoses and optimally function in a work environment, particularly since reporting satisfaction with her current medication regimen. However, after reviewing the claims file, the VA examiner issued an addendum opinion. First, the examiner indicated that the Veteran's previous diagnoses of bipolar disorder and anxiety disorder would be modified to include a diagnosis of personality disorder with traits of avoidant and dependent personality disorders. Significantly, the examiner opined that, "While Bipolar Disorder and Anxiety Disorder NOS create a reduced reliability and productivity in her day to day functioning, the comorbid presentation of personality disorder, Bipolar Disorder, and Anxiety Disorder causes severe functional impairment and negatively affects her thoughts, judgment, and reasoning, occupational, and social functioning." (Emphasis added). The examiner also noted that the Veteran's likelihood of obtaining and maintaining employment due to the comorbid effects of her multiple diagnoses was "questionable." However, the examiner concluded that, "When assessing for the occupational impairments secondary to her Axis I diagnoses, the original opinion stands; that is, [the Veteran] may experience some reduced productivity and reliability within the job force, but these diagnoses do not impede her from obtaining or maintaining employment." (Emphasis added). The Board finds the language used by the May 2012 examiner to be confusing and seemingly contradictory. On the one hand, the examiner opined that the Veteran's likelihood of obtaining and maintaining employment was "questionable" as a result of her multiple psychiatric diagnoses, while mere sentences later concluded that the Veteran's diagnoses "do not impede her from obtaining or maintaining employment." Moreover, although the examiner's addendum added a diagnosis of personality disorder with traits of avoidant and depressant personality disorders to the Veteran's existing, service-connected bipolar disorder and anxiety disorder, the examiner did not opine as to whether the personality disorder was the result of, or chronically aggravated by, her service-connected psychiatric disorders. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2011, the Board remanded the issue of entitlement to TDIU and requested that the appellant be afforded a VA psychiatric examination for the purpose of determining whether it was at least as likely as not that the Veteran was unable to follow or maintain a substantially gainful occupation by reason of service-connected psychiatric disability. As the May 2012 VA opinion provided in response to the May 2011 remand is inadequate, in that it does not provide a clear, coherent opinion, the case must be remanded for another VA opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the May 2012 VA examiner, or if unavailable, another appropriate examiner, provide a VA psychiatric examination for the purpose of determining whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran is unable to follow or maintain a substantially gainful occupation by reason of service-connected bipolar disorder and anxiety disorder. The VA examiner should clarify whether it is at least as likely as not that the personality disorder, not otherwise specified, with traits of avoidant and dependent personality disorders, referenced in the May 2012 addendum to the VA examination report, is proximately due to, or chronically aggravated by, the appellant's service-connected bipolar disorder and/or anxiety disorder. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to a TDIU. Consideration of a TDIU should include consideration of whether referral to the Director, Compensation and Pension, for extraschedular consideration is warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).