Citation Nr: 18141729 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 02-19 999A DATE: October 11, 2018 REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) from December 14, 2010 through September 9, 2013 is remanded. REASONS FOR REMAND The Veteran had active military service from October 1968 to May 1970. This matter originally came before the Board of Veterans’ Appeals (Board) from a July 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This case has a complex procedural history. In November 2013, a Board decision denied an initial rating in excess of 70 percent from December 14, 2010 through September 9, 2013 for posttraumatic stress disorder (PTSD) and held that a TDIU issue had not been raised by the record during this timeframe. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) resulting in an August 2014 Order granting a Joint Motion for Partial Remand (Joint Motion) and vacating the November 2013 Board decision to the extent that it denied consideration of entitlement to a TDIU between December 14, 2010 and September 9, 2013. In October 2014, the Board remanded the Veteran’s claim for further development consistent with the August 2014 JMR. In a February 2017 decision, the Board remanded the matter for a VA examiner’s opinion on whether the Veteran’s service connected disability, alone or in combination, prevented him from securing or following substantially gainful employment during the period of December 14, 2010 through September 9, 2013. In an August 2017 decision, the Board denied the Veteran’s claim for entitlement to a TDIU from December 14, 2010 to September 9, 2013. The Veteran subsequently filed a timely appeal with the Court, which vacated the Board’s August 2107 denial in a March 2018 order granting a JMR. Entitlement to a TDIU from December 14, 2010 through September 9, 2013 is remanded. The Veteran maintains that he is entitled to TDIU from December 14, 2010 through September 9, 2013. In vacating the Board’s August 2017 decision, the March 2018 JMR identified deficiencies in the June 2017 VA examination and instructed that a new opinion or examination be given for the Veteran’s claim. Specifically, the March 2018 JMR found that the June 2017 opinion did not substantially comply with the Board’s February 2017 remand directives in that the examiner stated that an opinion could not be provided because the record did not contain sufficient information regarding the Veteran’s work history and because she did not personally interview him. The March 2018 JMR noted that it was unclear why the Board determined that it could decide the appeal after obtaining an inadequate opinion after previously finding that an expert opinion was required. The March 2018 JMR instructs the Board to obtain an expert opinion on the issue of whether the Veteran’s service connected disabilities, alone or in combination, prevented him from securing or following a substantially gainful occupation consistent with his education and experience for the period from December 14, 2010, through September 9, 2013. On remand, such an opinion should be obtained. Finally, the Board acknowledges that the Veteran was incarcerated for a period during the time frame in question. Specifically, the Veteran was incarcerated from July 2012 to September 2013. On remand, such records should be obtained. The matter is REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims. These should pertain specifically to the dates December 14, 2010 through September 9, 2013. This should include any treatment records for the period of time the Veteran was incarcerated, from the appropriate facility. 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After the receipt of any such outstanding treatment records, return the claims file to the June 2017 VA examiner, if available, or to an appropriate medical professional. The need for a physical examination or interview is left to the discretion of the medical professional offering the opinion. For the period from December 14, 2010 to September 9, 2013, the examiner should provide a full description of the effects, to include all associated limitations, that the Veteran’s service-connected disabilities have SINGULARLY and/or JOINTLY, on his ordinary activities. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s service-connected disabilities, alone or in combination, prevented him from securing or following a substantially gainful occupation consistent with this educational and occupational experience. The examiner should take into consideration the Veteran’s level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. During this appeal period, the Veteran’s service connected disabilities consisted of PTSD, bilateral high frequency hearing loss and right knee chondromalacia. All opinions expressed should be accompanied by a supporting rationale. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk