Citation Nr: 1312982 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-13 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), to include a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. This matter initially came before the Board on appeal from a September 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board Remanded the appeal in May 2011. The Veteran testified before the undersigned Veterans Law Judge in January 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In its May 2011 Remand, the Board requested development of medical opinion as to the severity of social and occupational impairment due to PTSD. Such medical evidence is necessary to determine whether the 50 percent evaluation assigned for PTSD is appropriate, and to determine whether the Veteran is entitled to TDIU benefits. The examiner opined that, since the Veteran had not formally worked since 1993 or 1994, it was not possible to determine the impact of PTSD on the Veteran's employability "without resort to speculation." This conclusion does not address the criteria for evaluating PTSD, and does not serve as an adequate factual basis to allow the Board to adjudicate the claim for TDIU benefits. In particular, the Board notes that there is considerable information about the Veteran's social and industrial functioning during the pendency of this appeal which was not referenced by the examiner. The Veteran's living situation changed during the course of the appeal. The Board notes that information about the Veteran's living arrangements could provide insight into his present ability to interact with authority figures. Analysis of the activities of daily living required in each living situation, and the Veteran's inability or ability to perform required activities independently or to follow direction in performing those activities could provide insight into his present ability to interact with authority figures and his ability to perform work-like activities. The clinical notes reflect that the Veteran received a "stipend" during a portion of the appeal for some type of work-like but flexible employment. VA outpatient treatment records reflect that the Veteran later reported to several clinical providers that he had part-time employment of some type to supplement his income. Additional information as to the type of work the Veteran performed and the frequency of such employment could shed light on the Veteran's reliability and productivity. An industrial and social survey could assist the examiner to provide an opinion regarding the impact of the Veteran's PTSD on his employability without resort to speculation, and would assist the Board to obtain information necessary to adjudicate the appeal. The VA clinical records provide information regarding the Veteran's ability to following directions and comply with medication regimens. The examiner did not discuss this clinical evidence with respect to the Veteran's occupational ability. The Veteran has also indicated increased church attendance and reported more extensive interactions with family members at the more recent clinical evaluations. The Veteran has also reported intimate personal relationships in his life. The examiner did not provide analysis of this information in relationship to the Veteran's social functioning for purposes of employability. Moreover, the SSA award decision of record discusses the effects of PTSD, among other disorders, with respect to the Veteran's employability. The examiner did not discuss the SSA decision in the VA examination report. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The claim must be Remanded to obtain medical opinion that answers the questions noted in the prior Remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any clinical or non clinical evidence or information he believes may be relevant to determine the severity of PTSD or the effect of PTSD on his ability to obtain and maintain employment. 2. Obtain current VA clinical records, that is, records since June 2012, the date of the most recent records available in the electronic (Virtual VA) file associated with this appeal. 3. Conduct a VA social and industrial survey to assess the Veteran's day-to-day functioning and capacity for employment. The social worker should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, and social and industrial capacity. The claims folder must be made available to the social worker in conjunction with the survey as it contains important historical data. Put a copy of the report in the claims file. (a) The survey should include a detailed employment history as well as the Veteran's current employment status, if any. The Veteran should provide complete information about work-like activities he has performed during the pendency of this claim, that is, since July 2007, including work for any "stipend," in exchange for rent, or part-time and flexible employment, odd jobs for cash or in-kind services, and the like. (b) The surveyor should also address the Veteran's social interactions - to include those with family, friends, neighbors, and members of the opposite sex. Participation in clubs, churches or other social activities should also be listed and discussed. (c) The surveyor is not limited to the foregoing instructions, but may seek initial or additional development in any survey area that would shed more light on the nature and severity of the Veteran's PTSD. 4. Following the completion of the above-indicated VA social and industrial survey, afford the Veteran another VA psychiatric examination to reassess the severity of his PTSD. The claims file, including a copy of this remand, must be made available to and reviewed by the examining psychiatrist for the pertinent medical and occupational history. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present and attributable to the PTSD. All appropriate diagnostic testing deemed necessary to render clinically-supported diagnoses and assessments of functioning/employability should be administered. In this regard, the Veteran's PTSD should be evaluated for the specific purpose of assessing the relative degree of industrial impairment, in light of his recorded medical and vocational history. To this end, the examiner should also be requested to provide comment regarding the findings recorded by the VA survey or as part of the VA social and industrial survey. If there are psychiatric symptoms which are NOT attributable to or caused by, the service-connected PTSD, the examiner should so state. The examiner should assign a Global Assessment of Functioning (GAF) score and explain what the score means. In addition, the examiner should describe what types of employment activities or related work-place limitations, if any, are impaired due solely to the Veteran's service-connected PTSD, bearing in mind his entire social-medical history. The examiner should also describe how the symptoms of the Veteran's service-connected PTSD affect his social capacity, including the degree of any occupational and social impairment demonstrated. The examiner should describe the types of work-like activities the Veteran retains despite his PTSD and should describe the types of work the Veteran is unable to perform as a result of PTSD. The examiner is particularly requested to comment on the effects of the Veteran's service-connected PTSD on his ability to obtain and maintain substantially gainful employment (versus just marginal employment) consistent with his prior work experience, level of education and training, etc. In terms of marginal employment, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18 (2012). The examiner must consider the Veteran's lay statements. The examiner must provide a rationale for each opinion expressed. If an opinion cannot be provided without resort to mere speculation, the examiner should indicate this in the examination report and must provide a rationale for such conclusion. 5. Then readjudicate the claim for a rating higher than 50 percent for PTSD, including the derivative TDIU claim. When considering this derivative TDIU claim, also determine whether this claim should be referred for extra-schedular consideration under 38 C.F.R. § 4.16(b). If these claims are not granted to the Veteran's satisfaction, send him a supplemental SOC (SSOC) concerning these claims and give him an opportunity to submit additional evidence and/or argument in response before returning the files to the Board for further appellate consideration of these claims. 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). _________________________________________________ MICHAEL A. HERMAN 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).