Citation Nr: 18146518 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-19 178 DATE: October 31, 2018 REMANDED Entitlement to an initial rating in excess of 30 percent prior to November 6, 2013, in excess of 50 percent from November 6, 2013, to April 6, 2017, (with the exception of the period where a temporary total rating has been assigned), and in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol use disorder is remanded. Entitlement to service connection for substance abuse other than alcohol use disorder, to include as secondary to service-connected PTSD. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1984 to October 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2016, the Board remanded the case for further development. In this regard, such included a claim for service connection for substance abuse, to include as secondary to service-connected PTSD. Thereafter, in a May 2018 rating decision, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran’s service-connected disability as PTSD major depressive disorder and alcohol use disorder, thus effectively service-connecting her alcohol use disorder. Based on the AOJ’s lack of inclusion of the issue of entitlement to service connection for substance abuse in the accompanying supplemental statement of the case, it appears that the AOJ considered such award to be a full grant with respect to such matter. However, as will be discussed herein, it appears that the Veteran has also been separately diagnosed with cannibis use disorder during the pendency of the appeal. Consequently, the Board has retained jurisdiction over the issue and recharacterized it as shown on the title page of this decision. The remainder of the issues likewise return for further appellate consideration. The Board also notes that a March 2016 rating decision denied service connection for sleep apnea, and a May 2017 rating decision denied service connection for obesity, tinnitus, and bilateral hearing loss. Thereafter, the Veteran entered notice of disagreements as to such decisions in March 2017 and January 2018, respectively. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claims are still being developed by the AOJ. As a result, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. 1. Entitlement to an initial rating in excess of 30 percent prior to November 6, 2013, in excess of 50 percent from November 6, 2013, to April 6, 2017, (with the exception of the period where a temporary total rating has been assigned), and in excess of 70 percent thereafter for PTSD with major depressive disorder and alcohol use disorder. With respect to her claim for higher initial ratings for PTSD, the Veteran and her representative essentially contend that the severity of her PTSD symptoms warrant higher ratings than those currently assigned. In this regard, the record reflects that the Veteran was examined by VA in January 2012, November 2013, April 2017, and March 2018. However, in May 2018, the Veteran’s treating VA psychiatrist stated that the Veteran had an increased exacerbation in her symptoms making it more difficult socially and occupationally, to include with personal relationships, and she was awaiting to start an inpatient PTSD program. Additionally, in a July 2018 letter from the Veteran’s primary supervisor, it was noted that supervisor had worked with the Veteran since December 2013, and indicated that the Veteran’s personal struggles with mental illness had impacted her work and required her to seek residential treatment for military sexual trauma, but she attempted to maintain her employment. Most recently, an August 2018 VA treatment record indicates that the Veteran was accepted for a residential treatment program with an admission date of September 6, 2018. As such, the Board finds that the Veteran should be afforded a new VA examination that addresses the current severity of her PTSD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained. Thereafter, all identified records, to include updated VA treatment records dated from April 2018 to the present, should be obtained. 2. Entitlement to service connection for substance abuse other than alcohol use disorder, to include as secondary to service-connected PTSD. The Veteran asserts that she has a substance abuse disorder, to include alcohol and drug use, that is secondary to her service-connected PTSD. In June 2016, the Board found that a remand was necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of her substance abuse disorder, to include whether such is secondary to her PTSD. Specifically, the Board indicated that the examiner should determine whether the Veteran had a substance abuse disorder, to include in remission, at any time since December 2010 that was caused or aggravated by her PTSD. While on remand, the Veteran was afforded VA examinations in April 2017 and March 2018. As relevant, at the April 2017 examination, the examiner diagnosed alcohol use disorder and cannibis use disorder, noting daily use of alcohol and marijuana. However, the examiner did not provide an opinion as to whether such disorders were caused or aggravated by her PTSD. In the March 2018 examination, the examiner diagnosed alcohol use disorder and opined that such disorder was proximately due to or the result of the Veteran’s service-connected PTSD. However, she did not provide an opinion regarding the etiology of any other substance use disorder, to include cannibis use disorder. Therefore, a remand is necessary in order to obtain an addendum opinion addressing such matter. 3. Entitlement to a TDIU. The Veteran contends that she is entitled to a TDIU due to her service-connected PTSD. In this regard, pursuant to the Board’s June 2016 remand, the Veteran submitted a Veteran’s Application for Increased Compensation based on Unemployability (VA Form 21-8940) in June 2018, wherein she reported that she worked as a peer support specialist from December 2013 to June 2018. However, a July 2018 letter from the Veteran’s supervisor indicated that she was attempting to maintain her employment. Therefore, it is unclear as to whether the Veteran has ceased working. Consequently, clarification of the Veteran’s employment history is required. Therefore, the claim must be remanded in order to request that the Veteran submit an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Furthermore, the Board notes that the Veteran’s TDIU claim is inextricably intertwined with her claim for increase rating for PTSD as the outcome may impact her TDIU claim. Therefore, adjudication of the TDIU claim must be deferred pending the outcome of such claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). The matter is REMANDED for the following actions: 1. Contact the Veteran and request that she complete and return an updated VA Form 21-8940 that includes information regarding her current employment status. 2. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to her claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include VA treatment records dated from April 2018 to the present. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 3. The Veteran should be afforded a new VA examination to determine the current nature and etiology of her claimed substance abuse disorder other than alcohol use disorder, and the severity of her service-connected PTSD. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should indicate whether the Veteran has a substance abuse disorder other than alcohol use disorder, to include in remission, at any time since December 2010 that is caused or aggravated by her PTSD. For any aggravation found, please state, to the best of your ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In this regard, the examiner should specifically address the etiology of the Veteran’s cannibis use disorder. (B) The examiner should identify the nature and severity of all current manifestations of the Veteran’s service-connected PTSD, and the resulting impairment in her social and occupational functioning. In making these findings, if the examiner notes additional diagnoses, the examiner should attempt to measure the symptoms and limitations attributable solely to the Veteran’s service-connected PTSD and provide a rationale for such distinctions. All opinions expressed by the examiner should be accompanied by a complete rationale. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel