Citation Nr: 1417078 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 09-48 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability before September 7, 1994. REPRESENTATION Veteran represented by: Jacques P. DePlois, Attorney at Law ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1970 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In a decision in May 2012, the Board granted an effective date of September 7, 1994, for the award of a total disability rating based on individual unemployability. The Veteran appealed that decision to United States Court of Appeals for Veterans Claims (Veterans Court). In an order in April 2013, the Veterans Court vacated and remanded that part of the Board decision's that denied a total disability rating based on individual unemployabilitybefore o September 7, 1994 for action consistent with the Joint Motion for Remand. The appeal is REMANDED to the Agency of Original Jurisdiction. REMAND In order to facilitate review of the Veteran's file by the VA examiner, the Board provides a summary of the record before September 1994. The Veteran seeks an effective date of August 16, 1991, for the award of a total disability rating based on individual unemployability. From that date, the service-connected disabilities of posttraumatic stress disorder (50 percent disabling), history of compression fracture of T12-L1 with muscular strain (30 percent disabling), and a right shoulder disability (dominant) (20 percent disabling) had a combined 70 percent rating and he met the minimum schedular percentage standards for a total disability rating for compensation based on individual unemployability. The Veteran completed high school. He reports that since service he had had a few jobs that lasted only a month or so, and that he last worked in 1987 as a television repairman. In a letter in April 1990, W.P., M.D., indicated that he treated the Veteran for chronic neck and back pain. He expressed the opinion that the Veteran was disabled and could not get and sustain a job due to his chronic pain and decreased functioning ability. VA vocational rehabilitation records show that in December 1991 the Veteran underwent psychological evaluation, and in January 1992, he was found eligible for a program to improve his rehabilitation potential for suitable employment. His rehabilitation plan was to attend school with the goal of employment in the field of accounting and bookkeeping. A subsequent counseling record in January 1992 noted that based on service-connected back and shoulder disabilities and the nonservice-connected disc problem, as well as a "nervous condition," it was advised that the Veteran should begin rehabilitation efforts on a part-time basis. VA records show that the Veteran was an inpatient from late January 1992 to early February 1992 in a drug and alcohol rehabilitation program. At that time, his diagnoses included continuous alcohol and drug dependency and chronic pain syndrome. During a February 1992 VA psychiatric examination, the diagnoses included posttraumatic stress disorder, which was mild, and multiple substance abuse, and the GAF scale score was 70, which represented mild symptoms or some difficulty in social, occupational, or school functioning. On a VA orthopedic consultation in March 1992, the VA examiner, in reference to service-connected and nonservice-connected disabilities of back, right shoulder, and neck disabilities, indicated that conservative treatment was appropriate and that the Veteran needed to be careful with his activities. In January 1993 in a narrative report in the Veteran's VA vocational rehabilitation records the Veteran was referred for counseling to discuss a change of direction and the next step in the evaluation process. By history, the Veteran started school in the spring term of 1992, but he had lots of physical problems and withdrew. He did not attend summer sessions and, in the fall term, he completed his mathematics class with a grade of "A." The Veteran improved to the extent that he could go into a store alone and was better overcoming his agoraphobia. He worked with a therapist at the Center for Holistic Therapies (CHT), where he was a co-facilitator of the veterans group for drug and alcohol counseling. The vocational rehabilitation counseling psychologist's assessment was that the Veteran remained mentally capable of training and employment. Whether he could carry a full-time class load was yet to be determined. The VA psychiatric treating physician concurred that the Veteran should begin on a limited work tolerance on a part-time basis and work up to a fuller load as time and health permitted. In an undated assessment received in January 1993, a CHT representative assessed the Veteran as having a severe posttraumatic stress. In June 1993 in a letter from the Veteran's therapist at CHT, it was indicated that the facility provided posttraumatic stress disorder counseling for the local Vet Center and that the Veteran was a client for a year and a half. When he started treatment, the Veteran had to be driven to the sessions by his wife because of agoraphobia and isolation. He was also heavily alcohol and drug dependent, and exhibited severe emotional numbing, depression, feelings of helplessness, and withdrawal. He had outbursts of uncontrolled rage, anxiety, continuous nightmares and flashbacks of Vietnam, and sleep disturbance. He was hyperalert, irritable, and had frequent suicidal ideation. He felt a tremendous amount of survival guilt and rage at the government for the Vietnam War. His interpersonal skills were seriously impaired. In September 1993, VA inpatient records show that the Veteran was hospitalized for evaluation of a possible seizure disorder and psychiatric evaluation. A psychiatric evaluation resulted in an impression of a very mild form of posttraumatic stress disorder. The evaluator was more impressed with the Veteran's personality disorder that showed antisocial and narcissistic features. The discharge diagnoses were probable seizure disorder, personality disorder with antisocial and narcissistic features, mild posttraumatic stress disorder, alcohol and polysubstance abuse, in remission, and chronic low back pain with no motor deficits. At discharge, the Veteran's functional status was such that he was advised not to drive, but that he should gradually increase activity and that he may return to work at any time. In December 1993, a CHT therapist submitted another letter on the Veteran's behalf. It was indicated that his posttraumatic stress disorder symptoms varied relative to the level of back pain. She was doubtful whether the Veteran would be able to hold full-time employment in a traditional job due to his physical and emotional posttraumatic stress disorder disabilities. Included were records of the Veteran's individual and group sessions, dating from August 1991 to March 1993. However, these records show that the Veteran complained primarily of problems not only with his anger but also with difficulty arising out of continued use of drugs and alcohol. A summary indicates that he made significant progress, that he was initially agoraphobic, and that he had severe depression, flashbacks, nightmares, anger, late stage alcoholism, drug abuse and problems with authority figures and personal relationships. He made progress in dealing with his anger and maintaining sobriety. He used medication for his physical pain and depression. In August 1994, the VA vocational rehabilitation records show that the Veteran was evaluated for the next step of the rehabilitation process. He was in extended evaluation status to determine feasibility of achieving a vocational rehabilitation program. Due to problems with pain, he was able to take only two courses per term. He then had medication problems, so he was kept on limited work tolerance while the medication was adjusted. The Veteran had earlier identified the field of Human Services as his area of interest, and he took courses in that area to cut down the course load per hour as he went through the rehabilitation process. He was able to maintain a grade point average (GPA) of 3.361 and improved to the point where the Veteran thought he could carry three courses per term (9 credit hours). He also moved from night classes to day classes. His self-confidence and self-esteem greatly improved. His medication prevented further seizures and his physician determined that conservative back treatment was appropriate. It was noted that although he remained disabled, the Veteran believed he had found an appropriate vocational objective that met his aptitudes, interest, abilities, and accommodated his service-connected disabilities. His current vocational objective was compatible with his disabilities. The vocational rehabilitation counseling psychologist also noted that the Veteran was cooperative in all phases of counseling. He helped work out class schedules and was pro-active in identifying a practicum and potential employment site. He was looking forward to completing his education and returning to the work force. It was noted that as the Veteran's self-esteem and self-confidence had grown, he had become more positive and the feasibility of achieving a rehabilitation goal and attaining employment appeared to be currently reasonable. As the current evidentiary record is insufficient to decide the pending total disability rating based on individual unemployability claim before September 7, 1994, a medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Arrange to have the Veteran's file reviewed by either a physiatrist (physician specializing in rehabilitative medicine) or a practitioner in the field of rehabilitative medicine to determine: Whether at any time prior to September 7, 1994, the service-connected disabilities: posttraumatic stress disorder (50 percent disabling), history of compression fracture of T12-L1 with muscular strain (30 percent disabling), and a right shoulder disability (dominant) (20 percent disabling), with a combined rating of 70 percent, prevented the Veteran from obtaining or following substantial gainful employment. In formulating the opinion, the VA examiner is asked to consider the following facts: The Veteran graduated high school; The Veteran served on active duty from January 1970 to March 1972; and, After service, the Veteran worked only sporadically, with most jobs lasting a month or less; he last worked as a television repairman in 1987. 2. After the development has been completed, adjudicate the claim for a total disability rating for compensation based on individual unemployability before September 7, 1994. If the benefit sought is denied, issue a supplemental statement of the case and return the case 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). The 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). _________________________________________________ George E. Guido Jr. 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).