Citation Nr: 1333615 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 03-29 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Mary Anne Royle, Esq. ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from May 1964 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which granted the Veteran's claim of service connection for posttraumatic stress disorder (PTSD), assigning an initial 50 percent rating. In February 2005, the Board denied the Veteran's claim for an initial rating greater than 50 percent for PTSD. The Veteran's representative and VA's Office of General Counsel then filed a Joint Motion for Remand with the United States Court of Appeals for Veterans Claims (Veterans Court) which was granted in October 2005. In December 2009, the Board assigned a higher initial 70 percent rating for the Veteran's service-connected PTSD. The Board also remanded the Veteran's claim of entitlement to a TDIU to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).. In April 2012, the Board denied the Veteran's claim of entitlement to a TDIU. The Veteran timely appealed the Board's April 2012 decision to the Veterans Court. In May 2013, the Veterans Court vacated and remanded the April 2012 Board decision. In September 2013 the Veteran's representative submitted additional medical evidence with a waiver of initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2013). Unfortunately, and although the Board regrets any delay which may be caused by this action, the appeal is REMANDED again to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that his service-connected disabilities prevent him from securing or maintaining substantially gainful employment, entitling him to a TDIU. Having reviewed the record evidence, the Board finds that a remand is necessary before the underlying claim can be adjudicated on the merits. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection currently is in effect for PTSD (rated as 70 percent disabling), tinnitus (rated as 10 percent disabling), and bowenoid papularis of the penile shaft (rated as 0 percent disabling). The Veteran's combined disability rating for compensation is 70 percent. As such, the Veteran meets the percentage requirements for a TDIU laid out in 38 C.F.R. § 4.16(a). The February 2011 VA examiner concluded that the Veteran had some reasonable level of intelligence and energy as evidenced by his involvement with money laundering. The examiner explained that it was not likely that the Veteran's PTSD contributed to this crime as PTSD does not cause criminal behavior and severe PTSD would be so incapacitating as to prohibit such goal-directed behavior. The August 2011 VA examiner also opined that the Veteran's PTSD was not as likely as not to preclude him from obtaining or sustaining gainful employment. The examiner explained that the Veteran also suffered from a personality disorder and this problem contributed at least as much to the Veteran's difficulties in getting along with others and maintaining employment. The August 2011 examiner also concluded that the Veteran's substance abuse was not secondary to his psychiatric disorder because he came from a dysfunctional household with alcoholic parents and engaged in substance abuse some 30 years prior to seeking treatment. In the May 2013 decision, the Veterans Court concluded that the 2011 VA examiner's opinion did not address the nonexaggerated symptoms of PTSD which warranted the Veteran's 70 percent disability rating or the effect of those symptoms on his ability to maintain employment, "making wholly unclear the basis for the examiner's opinion that [the Veteran's] PTSD did not, by itself, preclude gainful occupation." See Haddon v. Shinseki, No. 12-1362 (May 2, 2013), at pp. 3. In September 2013, the Veteran's representative submitted an August 2013 letter from the Veteran's private psychologist. This clinician stated in his August 2013 letter that it was the combination of the Veteran's PTSD, depression, and physical problems which made him unemployable. An August 2013 private examination report stated that the Veteran's depression was inextricably intertwined with his service-connected PTSD and his overuse of alcohol and smoking marijuana had been secondary to his PTSD. The August 2013 examiner opined that the Veteran had "very severe limitations of functioning due to his service-connected PTSD." This clinician concluded that the Veteran was unable to secure and follow substantially gainful employment and had been unable to do so since January 2002. In light of the decision by the Veterans Court in May 2013 vacating and remanding the Board's April 2012 decision, and because the Board is bound by the Court's decision in this case, on remand, the Veteran should be scheduled for a new VA examination to determine the impact of his service-connected disabilities on his employability. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his attorney and ask him to identify all VA and non-VA clinicians who have treated him for his service-connected PTSD, tinnitus, or for bowenoid papularis of the penile shaft in recent years. Ask the Veteran to provide a complete employment history, if possible. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. Obtain employment records from the Veteran's former employers, if possible. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Then, schedule the Veteran for a VA Social and Industrial Survey to determine if his service-connected PTSD, tinnitus, and bowenoid papularis of the penile shaft, alone or in combination, preclude him from obtaining and maintaining all forms of substantially gainful employment. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete employment history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected PTSD, tinnitus, and bowenoid papularis of the penile shaft, alone or in combination, are productive of an overall level of industrial incapacity that is so severe as to prevent the Veteran from obtaining and maintaining all forms of substantially gainful employment consistent with his educational and occupational experience. In rendering this opinion, the VA examiner must discuss the exaggerated and nonexaggerated symptoms of the Veteran's PTSD and his alcohol and drug abuse. Neither the Veteran's age nor his non-service-connected disabilities should be considered in rendering this opinion. The examiner must discuss the February 2011 and August 2011 VA examinations and the private opinions of record including the August 2013 letter from the private psychologist and the August 2013 report from the private psychologist. A complete rationale must be provided for any opinions expressed. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2013). _________________________________________________ MICHAEL T. OSBORNE Acting 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).