Citation Nr: 1331111 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-38 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to October 1971. He received the Army Commendation Medal. This matter initially came before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial 30 percent disability rating, effective September 12, 2006. In February 2011, February and October 2012, and May 2013, the Board remanded the inferred claim for a TDIU for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In September 2012, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. In an April 2013 statement, the Veteran's representative raised the issue of entitlement to special monthly compensation based on the need for regular aid and attendance of another person or on account of being housebound. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In its May 2013 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the impacts of his service-connected disabilities on his employability. The examiner was instructed to opine as to whether all of the Veteran's service-connected disabilities combined (i.e. tinnitus and PTSD with alcohol and substance abuse and substance abuse mood disorder) to preclude him from engaging in substantially gainful employment that was consistent with his education and occupational experience. The Veteran was subsequently afforded separate VA psychiatric and audiologic examinations in June 2013 to assess the severity of his service-connected psychiatric disability and tinnitus. Although separate opinions were obtained concerning the individual impacts of these disabilities on the Veteran's employability, no single opinion was obtained as to the combined impact of the disabilities on employability. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to ensure compliance. Id. at 270-71. As no single opinion was provided concerning the combined impact of all the Veteran's service-connected disabilities on his employability, the Board is compelled to again remand the issue on appeal for compliance with the instructions in its May 2013 remand. With respect to the opinion concerning the impact of the Veteran's service-connected psychiatric disability on his employability, the psychologist who conducted the June 2013 VA psychiatric examination opined that even if one was arbitrarily asked to state that the Veteran's PTSD and substance abuse were related and that the substance abuse was therefore service-connected, the Veteran had still been working in spite of his impairment. Thus, he was able to maintain at least part-time employment based on his service-connected disabilities alone, regardless of the nature of those disabilities. The examiner reasoned that neither she nor a previous examiner were of the opinion that the Veteran's substance abuse was a service-connected disability. He did not appear to suffer from a mood disorder, substance induced or not, on the day of the June 2013 VA examination. Therefore, mood disorder was ruled out as a possible service-connected disability. It was believed that the combination of substance abuse and a personality disorder not otherwise specified contributed approximately 70 percent to the Veteran's impairment in working. PTSD symptoms contributed approximately 30 percent to his impairment. The examiner further explained that all of the Veteran's symptoms appeared to have improved from the degree of severity that had been reported during an October 2012 VA examination. Furthermore, he had been working. Specifically, he was able to make and maintain a garden for a restaurant, he was able to repair his boat, and he washed dishes at a marina restaurant. He reported that he was able to perform the duties of these jobs at the time of the examination. Thus, it was believed that he was able to work and be employed. However, his diagnosed personality disorder was likely to interfere with work performance and longevity. He did not have problems with helping a friend, but would have problems with a boss who would be seen as an authority figure. This was related to his diagnosed personality disorder. Substance abuse would likely make him unreliable and decrease his motivation. The June 2013 opinion is insufficient because the examiner appears to have been under the impression that the Veteran's substance abuse was not a service-connected disability. To the contrary, service connection is currently in effect for PTSD with alcohol and substance abuse. Additionally, the examiner's opinion was largely based on a conclusion that the Veteran was working at the time of the examination. However, the Veteran was reportedly retired at the time of the examination and the only "work" that he reported during the examination was renovating his own boat, making a garden for a restaurant, and washing dishes at the restaurant "when they need[ed] him." There is no evidence of any other significant employment during the claim period. In this regard, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012). Marginal employment is deemed to exist when one's earned annual income does not exceed the established poverty threshold for one person. Also, marginal employment may be found to exist on a facts found basis (including, but not limited to, employment in a protected environment) when earned annual income exceeds the poverty threshold. Id. In light of the above described deficiencies in the June 2013 opinion pertaining the Veteran's psychiatric disability, a remand is necessary to obtain a new opinion as to the combined impact of all the Veteran's service-connected disabilities on his employability. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). A May 2002 VA work therapy assessment note indicates that the Veteran was pursuing Social Security Administration (SSA) disability benefits. Also, there is conflicting evidence as to whether he is currently in receipt of such benefits. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to any SSA disability determination have not yet been associated with the claims file and may be relevant. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to report his employment history and earnings, especially for the period since September 2006. All efforts to obtain such information must be documented in the claims file. 2. Contact the SSA and obtain a copy of that agency's decision concerning any claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain additional information pertaining to the Veteran's employment history and to obtain and associate with the claims file any evidence from the SSA, the Veteran's claims file shall be referred to a VA medical professional with appropriate expertise (other than the psychologist who conducted the June 2013 VA examination) to review and provide an opinion as to whether the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. The opinion provider shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (tinnitus and PTSD with alcohol and substance abuse and substance abuse mood disorder) would, in combination and without regard to any non-service-connected disabilities, prevent him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him? The opinion provider must provide reasons for each opinion given. The opinion provider is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the opinion provider rejects the Veteran's reports regarding symptoms, he or she must provide a reason for doing so. If the opinion provider determines that he or she cannot provide an opinion without resorting to speculation, the opinion provider shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the opinion provider be undertaken so that a definite opinion can be obtained.) 4. The AOJ shall review the opinion to ensure that it contains the information requested in this remand (i.e. a single opinion as to the combined impact of all the Veteran's service-connected disabilities on his employability) and is otherwise complete. 5. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. A. MARKEY 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).