Citation Nr: 18155820 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-11 838 DATE: December 6, 2018 REMANDED Entitlement to a total disability rating based on individual employability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from June 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In October 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This issue was previously before the Board in February 2015 (when it was remanded) and in August 2017 when the Board denied the Veteran’s claim. The Veteran appealed the Board’s denial to the U.S. Court of Appeals for Veteran’s Claims (hereinafter Court). In an April 2018 Order, the Court vacated the Board’s decision with regard to the above issue and remanded it for further development pursuant to a Joint Motion for Remand (JMR). In October 2018, the Veteran submitted a September 2018 mental health Disability Benefits Questionnaire (DBQ) and VA clinical records with a waiver of RO consideration. (The DBQ’s clinician found that the Veteran’s symptoms caused occupational and social impairment with reduced reliability and productivity; the DBQ does not provide adequate evidence that a TDIU is warranted.) Entitlement to a TDIU is remanded. Based on the 2018 JMR, further development should be attempted. In a February 2015 remand, the Board directed that 1.) the Veteran be scheduled for a VA psychiatric examination and requested that the VA examiner note, in the examination report, the types of employment in which the Veteran would be able to participate from a medical standpoint, if any; and 2.) if the VA examiner found that the Veteran’s service-connected disability did not preclude substantial gainful employment, the RO was to arrange for the record to be forwarded to a VA Vocational Rehabilitation and Employment (VRE) counselor for review and an advisory opinion. In a September 2016 VA examination report, the examiner opined that the Veteran’s symptoms are best summarized by occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was employed full time at his friend’s bank, and has some special accommodations (leniency for interpersonal problems with colleagues); however, his current symptoms would not preclude gainful employment. The JMR found that the September 2016 examiner did not provide a medical assessment as to what types of employment the Veteran could perform. The claims file includes March 2017 correspondence from F.H. of VA VRE which reflects that a determination of the Veteran’s employability would be speculative because the Veteran had not applied for VRE services. In an August 2017 decision, the Board found that there had been substantial compliance with its 2015 remand directives (i.e. the Veteran was examined, the examiner found that the Veteran would need leniency for interpersonal problems with colleagues in a job but was able to work, and the VRE could not provide an opinion without speculation). However, in the 2018 JMR, the parties decided that it was “unclear” how the Board could find substantial compliance. Thus, the Board will remand the issue for further development. The matter is REMANDED for the following action: 1. Secure for the claims file copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his acquired psychiatric disability to include records from the VA medical facilities in New Jersey and/or New York prior to April 2017 and from VA medical facilities in Florida from April 1, 2017. (It appears from the claims file that the Veteran moved to Florida in 2017.) 2. Schedule the Veteran for an examination to determine the current severity of his acquired psychiatric disability. The examiner should provide an assessment of the Veteran’s functional limitations due to his service-connected PTSD (previously rated as adjustment disorder with mixed anxiety and depression). THE EXAMINER MUST PROVIDE A MEDICAL ASSESSMENT AS TO THE TYPES OF EMPLOYMENT WHICH THE VETERAN CAN PERFORM, IF ANY (THIS ACTION IS REQUIRED PURSUANT TO A JOINT MOTION FOR REMAND APPROVED BY THE COURT.) The examiner should consider the pertinent evidence of record to include: a.) the Veteran has more than three decades of work in the financial industry; b.) the Veteran has seven years’ experience as an Insurance Broker; c.) the Veteran has experience working at a bank; d.) the Veteran has a Master’s degree in business administration (MBA); e.) the Veteran has stated that he switched jobs because of corporate downsizing, and that he was bored when not working, but has also stated that he did not feel he could continue to work on a full-time basis; f.) the Veteran was employed from July 2014 to February 2017 at a friend’s bank; g.) the November 2010 VA examination report; h.) the opinions of Dr. L. Mack (e.g. December 2012, October 2014); i.) the August 2016 opinion of Dr. G. Lewis; j.) the September 2016 VA examination report; and j.) the October 2018 DBQ by Dr. I. Extein. If the Veteran fails to show for the examination, obtain a clinical opinion regardless and based on a review of the claims file. 3. If the VA examiner finds that the Veteran is not precluded from substantial gainful employment, forward the claims file to a VA Vocational Rehabilitation Division Counselor for a review and opinion. (THIS ACTION IS REQUESTED PURSUANT TO A JOINT MOTION FOR REMAND APPROVED BY THE COURT.) Based on review of the record, the counselor should offer an opinion regarding the effect the Veteran’s service-connected PTSD (previously rated as adjustment disorder with mixed anxiety and depression) has on employability, consistent with his education (MBA degree) and occupational experience (work in the financial industry to include on Wall Street, work for an insurance company, and work in a bank), but should NOT consider the Veteran’s age and any nonservice-connected disabilities. The consulting vocational specialist should opine whether the Veteran’s service-connected disability precludes him from participating in any substantially gainful employment consistent with his education and work experience. The consultant should identify (provide examples of) the types of employment that would be inconsistent with the service-connected disability (in light of the Veteran’s education and work experience) and any types of employment that would remain feasible despite the service-connected disability. Further, the consultant should provide an opinion as to whether rehabilitation services would be available to the Veteran with regard to any vocation for which he has the necessary educational skills and background to pursue and for which his mental condition enables him to permit training. THE BOARD IS AWARE OF THE MARCH 2017 VA VRE CORRESPONDENCE IN WHICH F.H. (MANAGEMENT ANALYST) STATED THAT A DETERMINATION ON THE VETERAN’S EMPLOYABILITY WOULD BE SPECULATIVE BECAUSE THE VETERAN HAD NEVER APPLIED OR BEEN EVALUATED BY A VR COUNSELOR; HOWEVER, PURSUANT TO A JMR APPROVED BY THE COURT, VRE SHOULD PROVIDE AN OPINION TO THE BEST OF ITS ABILITY BASED ON A REVIEW OF THE CLAIMS FILE.   4. Please clearly and substantially document in the virtual record any inability to fulfill the above development requests. M.C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard