Citation Nr: 1322367 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 07-24 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from November 1974 to February 1977. The appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Board last remanded the case in April 2012 for a VA examination with an opinion addressing the combined effect on employability of the Veteran's service connected disabilities. The Veteran was subsequently afforded a VA examination addressing his service-connected posttraumatic stress disorder (PTSD) and another examination addressing his service-connected right shoulder disability, but neither of these examiners addressed the combined effect of these two disabilities on the Veteran's capacity for substantially gainful employment. As such, there was substantial non-compliance with the Board's April 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Remand is thus again required for the requested opinion addressing the combined effect of service-connected disabilities on employability. As discussed below, the non-probative nature of the May 2012 VA psychiatric examiner's opinions, based on their reliance on inaccurate facts or inadequate review of the evidentiary record, also necessitates a new psychiatric examination. Additionally, the Veteran informed VA that he had been awarded Social Security Administration (SSA) disability benefits. That award and the records underlying it should be obtained in furtherance of the Veteran's claim for entitlement to a total disability rating based on individual unemployability (TDIU). See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence . . . cannot be foreclosed absent a review of those records"). The Veteran requested copies of the VA examinations which were most recently conducted in April 2012 and May 2012. It does not appear that these records were provided to the Veteran. The Veteran is presently unrepresented, and he should be afforded copies of relevant records to allow him to adequately address his claim on appeal. The Veteran contends that he should be afforded a social and industrial survey in furtherance of the TDIU claim. The Board is in agreement that such a survey may facilitate accurate adjudication of the claim. In the April 2012 remand, the Board instructed that the Veteran be afforded a VA psychiatric examination, and requested that the examiner distinguish, to the extent possible, the symptoms attributable to the Veteran's service-connected PTSD from those attributable to any psychiatric disorder found that is not secondary to, a manifestation of, aggravated by, or otherwise related to the Veteran's service-connected PTSD. The Board then further instructed that if another psychiatric disability was not medically distinguishable, the examiner should clearly so state. The Board also required that the examiner provide a complete rationale for all opinions expressed. The obtained May 2012 VA psychiatric examination was based substantially on the self-reported history as provided by the Veteran, examination interview, and face-value PTSD testing. While the examiner stated that he reviewed the claims file, the examiner failed to note or address clear discrepancies between the history of disability he relied on and the history of disability as documented within the evidence of record. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). At that March 2002 examination the Veteran noted that he was an electrical technician, but that he had not worked in that field for some time. The claims file contains a copy of the Veteran's basic electronics diploma approved by the Arkansas State Board of Education, earned in June 1981 at a technical school. The record reflects that this was a two-year vocational program. An August 1990 VA counseling record informs that the Veteran only worked briefly as a television repairman following that education, and thereafter worked as a press operator until 1987, following which he had difficulty finding work due to a poor work record which he admitted was due primarily to drugs and alcohol. That August 1990 record and subsequent treatment records reflect intermittent employments since 1987, with ongoing drug and alcohol difficulties. The record thus reflects some employment capacities beyond unskilled labor, while also reflecting substantial employment impairment related to the Veteran's long history of alcohol and polysubstance abuse. This contrasts with the employment history reported to the April 2012 VA examiner addressing employability, of a highest level of education as high school, past work only as a general laborer, and no formal training for any type of sedentary work. As noted, the Board believes that a social and industrial survey is also in order, with contacts of any recent employers, friends and neighbors, and his wife, to ascertain the nature of the Veteran's interactions and circumstances of his most recent employments and his termination from these employments, and the circumstances of his recent marital separation. The Veteran at his May 2012 VA examination attributed his last employment termination to his shoulder disability and his marital separation to his PTSD symptoms. A September 2003 vocational rehabilitation denial summary noted the Veteran's extensive substance abuse history and history of many prior employments of limited duration, and ultimately concluded that the Veteran appeared unemployable mainly due to his major depression. Also at the May 2012 psychiatric examination, the Veteran characterized himself as significantly self-isolating, which is at variance with a Guilford-Zimmerman Temperament Survey, conducted in November 2002 as part of a VA vocational rehabilitation assessment. That survey produced scores somewhat above average for sociability, corresponding to the Veteran often enjoying being surrounded by others, generally initiating conversations with strangers, and not being inclined to keep to himself. Thus, the Board believes that a social industrial survey may be useful in clarifying apparent discrepancies between the Veteran's presentation upon most recent psychiatric examination, and characteristics of the Veteran and his disabilities as reflected in the historical record. Accordingly, the case is remanded for the following action: 1. The Veteran must be provided the copies of his April 2012 and May 2013 VA examinations addressing his service-connected disabilities and the issue of employability. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records from June 2011 to the present which has not yet been associated with either the evidence of record. The RO must also obtain and associate with the evidence of record any SSA disability determination and the medical records underlying the determination. All attempts to secure this evidence must be documented and associated with the evidence of record. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. A social and industrial survey must be obtained to ascertain the Veteran's social interactions and work or work-like functioning in recent years. The evidence of record must be made available to and reviewed by the individual conducting the survey. The report from this survey must include comments on the Veteran's day to day functioning and the degree of social and industrial impairment which the Veteran experiences as a result of his service-connected disabilities. Information must be sought from current or recent employers regarding any work impairments and reasons for any cessation of work or quitting or firing. Friends and neighbors must be interviewed to ascertain the nature of the Veteran's social interactions and/or self-isolation. The Veteran's wife/former wife must also be interviewed, for information concerning familial interactions/ socialization and circumstances of his recent marital separation to verify the Veteran's assertions of the nature of his marital separation in support of his assertions of the severity of his PTSD. The surveyor is not limited to the foregoing instructions, but the individual conducting the survey may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities of a right clavicle disorder and PTSD. 4. After the above development is completed, the Veteran must be afforded a VA examination by a psychiatrist, to address both the nature and severity of his service-connected PTSD and his right clavicle disorder, and to determine the combined impact of the Veteran's service-connected PTSD and his service-connected postoperative residuals of fracture of the right clavicle on his ability to obtain or maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The newly obtained social and industrial survey must also be reviewed. All pertinent symptomatology and findings must be reported in detail. All necessary special studies or tests are to be accomplished. Psychiatric testing with validity testing must be accomplished, to arrive at a more accurate picture of the nature and extent of any psychiatric disability. The social and industrial survey must be addressed. The examiner must make findings of all current psychiatric disorders, potentially to include the previously diagnosed alcohol abuse and polysubstance abuse and major depression, whether they are secondary to, manifestations of, aggravated by, or otherwise related to the Veteran's service-connected PTSD. The examiner must, to the extent possible, distinguish the symptoms of the service-connected PTSD from those attributable to any psychiatric disorders found that the examiner finds are not secondary to, manifestations of, aggravated by, or otherwise related to the Veteran's service-connected PTSD. If, however, it is not medically possible to distinguish these symptoms, the examiner must clearly so state. With respect to the above-requested opinions, the examiner is advised that the Board finds the prior the May 2012 VA psychiatric examiner's opinions inadequate based on their reliance on inaccurate history provided by the Veteran, without consideration of historical records documented in the claims files. The current examiner must consider the chronology of the Veteran's alcohol and polysubstance abuse, including multiple detoxification hospitalizations over multiple decades and self-reported alcohol abuse and illicit substance use prior to service, and should consider the Veteran's history of other psychiatric disability, including diagnosed major depressive disorder with psychotic features. The examiner is asked to note in particular records of the detoxification/psychiatric hospitalization from February to April of 2002, with noted diagnoses of both major depressive disorder with psychotic features and substance abuse, with auditory hallucinations, but without diagnosed PTSD. The examiner must note these records and similar past treatment records reflecting significant psychiatric disability associated with depression and polysubstance abuse without findings of PTSD. The examiner is asked to address such past records of treatment for polysubstance abuse and treatment when addressing whether the Veteran's PTSD is differentiable from any other psychiatric disabilities found. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history, which must be be compared with prior reported employment history. The examiner must consider the Veteran's past education, including a two-year vocational degree in basic electronics, and past employment in labor, semi-skilled, or skilled capacities. The examiner must note the degree to which past employment or continuity of employment was impaired by repeated or ongoing alcohol and polysubstance abuse, and in some instances, by legal difficulties including incarceration. The examiner should also consider the impact on employability of nonservice-connected disabilities. The examiner should review the Veteran's multi-volume claims file, inclusive of the Veteran's counseling /evaluation rehabilitation folder. Based on the clinical examination, a review of the evidence of record, the findings of the social and industrial survey, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected disabilities of PTSD and residuals of a right clavicle fracture, and any disabilities whose symptoms cannot be differentiated from either of these two disabilities, acting in concert, to include any medications taken for these disabilities, consistent with his education and occupational experience. This opinion must be provided without consideration of his non-service-connected disabilities or his age. A complete rationale for all opinions expressed must be given. If the examiner cannot provide the requested opinion without resorting to speculation, this must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 5. After the requested development has been completed, the RO must review the examination report and social and industrial survey to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 6. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be associated with the record of any notice that was sent to the Veteran but was returned as undeliverable. 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).