Citation Nr: 1330129 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-16 294 ) 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 (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1974. He appealed to the Board of Veterans' Appeals (Board/BVA) from a March 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) that granted his claim of entitlement to service connection for posttraumatic stress disorder (PTSD). In another rating decision since issued in July 2012, service connection was granted additionally for depression and incorporated into the rating for the PTSD. The RO "staged" the rating for this disability, that is to say separate ratings were assigned for distinct periods in which the disability was manifested by symptoms warranting different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In support of his claims, the Veteran twice testified at hearings at the RO before Veterans Law Judges (VLJs) of the Board, in other words at Travel Board hearings. The initial hearing was in February 2010 and the more recent hearing in February 2013. In intervening August and December 2011 statements, and in his February 2013 hearing testimony, the Veteran maintained that he was unemployable because of his service-connected psychiatric disability. In several precedent decisions, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that a claim for a TDIU is part and parcel of an increased-rating claim, so not a separate claim, when this derivative claim is either expressly alleged or otherwise raised by the record. See, e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009). Because the Veteran had raised this claim in conjunction with his increased-rating claim for his PTSD and depression, the Board additionally assumed jurisdiction over this derivative TDIU claim. In June 2013 the Board dismissed the Veteran's claims of entitlement to service connection for asbestosis and for higher ratings for his PTSD and depression because he had withdrawn his appeal of these other claims at the outset of his February 2013 hearing. See 38 C.F.R. § 20.204 (2013). So only the derivative TDIU claim remained. The Board remanded this remaining claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration - including especially providing any necessary Veterans Claims Assistance Act (VCAA) notice and having him undergo a VA compensation examination for a medical opinion concerning whether his service-connected disabilities (namely, his PTSD, depression and erectile dysfunction (ED)) preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. Unfortunately, still additional information is needed concerning this determinative issue of employability, so the Board is again remanding this derivative TDIU claim to the RO via the AMC. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND As already alluded to, the Board previously remanded this derivative TDIU claim in June 2013, in part, for a VA examination and medical opinion concerning whether the Veteran's service-connected psychiatric disability (PTSD with depression) and ED, either alone or in combination, prevent him from obtaining and maintaining substantially gainful employment. He resultantly had a VA psychiatric examination later in June 2013. However, when addressing the impact of the Veteran's psychiatric disability on his occupational functioning, the examiner differentiated impairment due to the PTSD versus that due to the major depressive disorder. She stated that PTSD symptoms were mild and did not affect physical or sedentary employment, whereas the depressive symptoms were more prominent and that the depressive disorder was not related to service for reasons outlined in the examination report. Inexplicably, she did not provide an opinion regarding the impact of the depressive disorder on the Veteran's occupational functioning, and she failed to recognize that service connection is in effect both for the PTSD and depression, which are collectively rated as a single, aggregate disability. Therefore, the functional and occupational impairment resulting from the depressive disorder also must be considered when determining whether the Veteran is unemployable and consequently entitled to a TDIU. For this reason, a supplemental opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). In addition, in a June 2013 statement, the Veteran requested a social and industrial survey to better address this determinative issue of employability. Therefore, one should be provided. Accordingly, this claim is again REMANDED for the following additional development and consideration: (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. The claims file, including a copy of this remand, should be returned to the VA compensation examiner that performed the June 2013 VA psychiatric examination for an addendum opinion concerning whether the Veteran's service-connected psychiatric disability (PTSD with depression), prevents him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training, but not his advancing age and disabilities that are not service connected. The claims file, including a complete copy of this remand, must be forwarded to the examiner for review, and this consideration should be reflected in the examiner's report. *The examiner is advised that service connection already is in effect for PTSD and depression (not just for PTSD). Therefore, unlike when previously commenting, symptoms and impairment associated with the depression (not just the PTSD) are to be considered in assessing the Veteran's occupational limitations attributable to his service-connected disabilities. It is essential the examiner discuss the underlying basis of the opinion, whether favorable or unfavorable, including considering the prior March 2011 VA compensation examiner's mention to the effect that the Veteran's psychiatric symptoms were not conducive to employment. So if, as an example, this current examiner concludes that some forms of employment are still a viable possibility, even if not all types of jobs or that the service-connected disabilities merely impact, not altogether preclude, employability, the examiner also has to discuss specifically what these jobs might entail allowing the Veteran to still work. The examiner also is advised that the Veteran is competent to report his symptoms and history, and these reports must be specifically acknowledged and considered in formulating an opinion. If the examiner rejects the Veteran's reports, the examiner must provide the necessary reasons or bases. 2. Also provide the Veteran a VA social and industrial survey to further ascertain the impact of his service-connected disabilities on his ability to obtain and maintain substantially gainful (as opposed to just marginal) employment. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history obtained. In conjunction with the survey, the claims folder must be made available to the examiner for review of the relevant history. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner must address the likelihood (very likely, as likely as not, or unlikely) the Veteran's service-connected disabilities, considered together, would preclude his obtaining and retaining substantially gainful employment consistent with his education and occupational experience. The examiner is further advised that the claim must be considered in the context of the Veteran's individual circumstances, not whether an average person would be capable of obtaining and retaining substantially gainful employment. If it is the examiner's opinion that the Veteran's service-connected disabilities, considered together, do not render him unemployable, he or she should suggest the type or types of employment in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Upon completion of this and any other necessary development, readjudicate this derivative TDIU claim. If this claim continues to be denied, provide the Veteran a supplemental statement of the case (SSOC) and time to respond to it before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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) (2013).