Citation Nr: 1805109 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-27 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent disabling for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability based on individual unemployability (TDIU). 3. Entitlement to service connection for hypertension, claimed as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1970. This appeal comes before the Board of Veterans' Appeals (Board) from January 2009 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran and his wife testified at a May 2011 hearing before a Decision Review Officer (DRO) of the RO. The Veteran also testified before a Veterans Law Judge at a September 2013 videoconference hearing. This Veterans Law Judge is no longer with the Board, and in October 2017, the Veteran was offered the opportunity for another hearing before a current Veterans Law Judge. The Veteran subsequently declined another hearing. Transcripts of both hearings are of record. Regarding the claim for TDIU, the record reflects an indication that the Veteran is unemployable as a result of his service-connected PTSD and other disabilities. See, e.g., March 2011 Private Medical Opinion Letter. As such, the Board finds that entitlement to a TDIU has been raised by the evidence of record and has re-characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In October 2014, the Board remanded the issues on appeal for further development, and the case has since been returned to the Board. As will be discussed in greater detail below, the Board finds that the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). In October 2014, the Board remanded the issues on appeal to the AOJ for further development. With regard to the hypertension claim, the Board requested an opinion as to whether the Veteran's hypertension was caused or permanently worsened by the Veteran's service-connected PTSD. In a November 2014 medical opinion, the examiner opined that it is less like than not that the Veteran's hypertension is due to PTSD with the rationale that "there are no credible medical references reporting [hypertension] is caused by PTSD. There is no evidence that PTSD causes sustained hypertension." In that regard, the Board notes that an opinion to the effect that one disability "is not due to" another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Because the October 2014 VA examination is inadequate for decision-making purposes, the issue must be remanded for a further VA opinion. Barr, 21 Vet. App. 312. With regard to the TDIU claim, the Board requested a psychiatric examination and subsequent opinion concerning the impact of the Veteran's PTSD on his employability, to include whether it is sufficient by itself to render him unemployable. The Veteran attended a VA Psychiatric examination in December 2014. However, the examiner did not provide an opinion concerning the impact of the Veteran's PTSD on his employability, to include whether it is sufficient by itself to render him unemployable With regard to the PTSD claim, the Board finds that it is inextricably intertwined with the TDIU claim. Consideration of the PTSD claim is therefore deferred at this time until development detailed below for the TDIU claim is conducted. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Arrange for an examination in order to determine the nature and etiology of any current hypertension disorder. Upon review of the record, and examination of the Veteran, the examiner should respond to the following: a) Is the Veteran's current hypertension disorder at least as likely as not caused or aggravated beyond its natural progression by the Veteran's service-connected PTSD? The examiner is asked to provide a medical rationale or explanation for each opinion given. 2. Arrange for the examiner who conducted the December 2014 VA Psychological examination to provide an addendum opinion. The examiner should answer the following: What is the functional impact of the Veteran's PTSD on his employability? The examiner must consider the Veteran's employment history, his educational and vocational attainment and all other factors having a bearing on his ability to engage in employment. The examiner is asked to provide a medical rationale or explanation for any opinions provided. 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 2014). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).