Citation Nr: 1805411 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 08-21 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran appeared at a hearing before the Board in May 2010. A transcript of the hearing is of record. This matter was most recently before the Board in February 2017, when it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The primary unresolved issue in this case is what symptoms and portion of occupational and social impairment is attributable to the Veteran's service-connected psychiatric disability, currently rated as PTSD, as the record indicates some of the Veteran's symptoms and occupational and social impairment may be attributable to mental health disorders that are not encompassed by her service-connected disability. In February 2017, the Board directed the AOJ to obtain a medical opinion addressing this aspect of the appeal. In pertinent part, the Board directed the AOJ to obtain an opinion addressing whether any separately diagnosed mental health disorder is at least as likely as not caused or aggravated by the Veteran's service-connected PTSD. In July 2017, a representative with the AOJ issued a deferred rating decision requesting an opinion addressing whether the Veteran's currently diagnosed dysthymic disorder and borderline personality disorder are at least as likely as not caused by her service-connected PTSD. An aggravation opinion was not requested by the AOJ and was not provided by the selected examiner in the October 2017 Medical Opinion Disability Benefits Questionnaire. An opinion addressing secondary service connection is inadequate if it does not address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (indicating an opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition). Further, a remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, an opinion addressing aggravation in the context of secondary service connection is required. The issue of entitlement to TDIU is inextricably intertwined with the rating assigned for the Veteran's service-connected psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Accordingly, the case is REMANDED for the following action: 1. Request an addendum from the examiner who completed the October 2017 Medical Opinion Disability Benefits Questionnaire addressing whether the Veteran's currently diagnosed dysthymic disorder and/or borderline personality disorder are at least as likely as not aggravated by her service-connected PTSD. The examiner is advised aggravation means any increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the October 2017 examiner is unavailable, the opinion may be obtained from an equally qualified examiner. 2. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran 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 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. §§ 5109B, 7112 (2012). _________________________________________________ James L. March Chief Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).