Citation Nr: 18160936 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 11-20 625 DATE: December 28, 2018 REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2008 to December 2009. This matter comes back before the Board of Veterans Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska; however, the St. Louis, Missouri RO has jurisdiction of the appeal. The Veteran was scheduled for a video conference Board hearing before a member of the Board in September 2012. The Veteran did not appear at the hearing, did not request postponement, and has not shown good cause for not attending the hearing; therefore, the case must be processed as if the request for a hearing had been withdrawn. See 38 C.F.R. § 20.702(d). Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the development of evidence. In July 2016 the Board raised the issue of TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel of the Veteran’s claim for an increased rating of her service-connected depressive disorder and remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. In September 2017, the Board again remanded the appeal to the AOJ, in pertinent part, to obtain a VA opinion as to the effect of all of the Veteran’s service connected disabilities and to “obtain from the Veteran a full and current employment history.” The Veteran was provided examinations in February 2018 for all of her service connected disabilities, but at no point did any examiner elicit a full and current employment history. Accordingly, the Board finds that there was not substantial compliance with the September 2017 Board remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure remand compliance). Additionally, the Board cannot make a fully-informed decision because the Veteran’s psychological examination does not provide the Board with the information required to adjudicate the issue of TDIU and because her employment status during the appellate period remains unclear. Examinations Although employability is ultimately a legal determination reserved to the VA, the Board’s judgment regarding the Veteran’s functional abilities may be informed by and supported with medical evidence. See Geib v. Shinseki, F.3d 1350, 1354 (Fed. Cir. 2013). In this case, the Board cannot decide the issue of TDIU because there has not been an adequate opinion provided commenting on the effect of the Veteran’s depressive disorder on her work-related mental functioning. While the record contains a contemporaneous VA examination regarding the Veteran’s service-connected depressive disorder, there is not sufficient explanation regarding the examiner’s ability to differentiate the symptoms of the Veteran’s service-connected depressive disorder and her non-service-connected attention deficit hyperactivity disorder (ADHD). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion must contain clear conclusions with supporting data, but also a reasoned explanation). In this case, the examiner did not adequately explain how he came to the conclusion that the symptoms from each psychological disorder could be differentiated. The explanation included that “the diagnoses are independent of each other and result from separate etiologies. Her AD/HD (secondary) symptoms noted above exacerbate symptoms related to her Major Depressive Disorder (primary)” and directs the reader to “see symptom list.” See February 2018 VA Examination by A.L., Psy.D. The Board finds that this opinion contains neither clear conclusions, nor reasoned explanations. Notably, the listed symptoms for ADHD overlap significantly with the listed symptoms for the Veteran’s depressive disorder. Id. Further, the examiner provided an opinion of her difficulties as concerning “only and specifically [] the mental health diagnoses” that are related to military service. Id. This is problematic because when it is impossible to separate the effects of the service-connected condition and the non-service-connected condition, all of the signs and symptoms should be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Significantly, the Veteran’s 2011 psychological examiner made no attempt to differentiate the symptoms attributable to her service-connected depressive disorder from her non-service-connected ADHD and the current rating assigned is apparently based upon the entirety of her psychological pathology, rather than solely on the symptoms listed by the February 2018 VA examiner. See September 2017 Board Decision. When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be adequate, the examination and opinion must include a reasoned explanation and take into account a full and accurate history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, an additional examination that takes into account her full employment history and considers the full effects of her complete psychiatric symptoms on her occupational functioning must be completed. Employment Entitlement to TDIU requires impairment severe enough that it prevents the Veteran from obtaining and maintaining substantially gainful employment. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone (that is, regardless of any nonservice-connected disabilities) are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). From April 2009, the Veteran received Social Security Administration (SSA) disability benefits until these were ceased in March 2014, when SSA noted that her condition had improved to the point where she was able to perform simple tasks. See March 2014 SSA Notice of Disability Cessation. During approximately the same time period, the Veteran was a full time college student beginning in 2010 and in a nursing program off and on from 2011 to 2014, until she had to exit the vocational program in order to care for her children, one of whom had extensive medical problems. See November 2015 Special Report of Training (VA Form 28-1905d); January 2014 Telephone Primary Care Note by K.P., A.P.R.N.; June 2013 Special Report of Training (VA Form 28-1905d); October 2010 Veteran’s Schedule of Classes. However, in September 2014, the Veteran reported that she was working as an independent distributor of supplements. See September 2014 Primary Care Outpatient Note by C.L., P.A. In December 2016, her maternity care coordinator noted that she was a “stay at home mom” but was able to work from home. December 2016 Primary Care Telephone Encounter Note by K.P., A.P.R.N. Lastly, in February 2018, the Veteran reported that she was able to make up to $13,000 per month with her home-based business and that finances were not a problem, despite the fact that her husband had been a “stay-at-home” parent for a few years and was, at that time, re-entering the workforce. See February 2018 OEF/OIF Consult Note with H.E., L.I.C.S.W. In this case, the record reflects that the Veteran has made statements that she is currently engaging in a substantially gainful occupation. However, it does not appear that she was employed and engaged in a substantially gainful occupation during the entire period on appeal. In light of this, additional information is required before the Board can make a determination as to the Veteran’s entitlement to TDIU. The matter is REMANDED for the following action: 1. Ask the Veteran again to complete a TDIU claim form (VA Form 21-8940). 2. After this has been completed, then the AOJ should complete the following tasks: (a.) If the Veteran DOES submit a completed TDIU claim form, then obtain a VA medical opinion (with examination only if deemed necessary) by an appropriate medical provider(s). (b.) If the Veteran DOES NOT submit a completed TDIU claim form, then schedule the Veteran for an examination, with an opinion, by an appropriate medical provider. The examiner MUST elicit from the Veteran her COMPLETE educational, vocational, and employment history (i.e., from March 2010 to present and for the five years preceding the date she left her last employment) and this must include her employment titles, position descriptions, and her pay or salary. The examiner must record the Veteran’s reports about how her depressive disorder affected her ability to work. (c.) Based on review of the entire record and examination (if conducted), the opinion provider should provide answers to the following: 1. To what extent do the Veteran’s service-connected psychological disabilities, to include the effects of any medication used to treat such disabilities, preclude her from engaging in mental functional tasks? When answering this question, please consider her education and employment history but NOT the effects of age or any non-service-connected disabilities. [For the purpose of this question, please assume that the entirety of the Veteran’s psychological pathology is service-connected.] 2. In addressing the above questions, the opinion provider may identify and provide examples of the types of employment or work-related mental tasks that would be inconsistent with the service-connected disabilities (considering the Veteran’s education and work experience) and any types of employment or work-related mental tasks that would remain feasible despite the service-connected disabilities. The opinion provider should consider and address as necessary the following facts (the following is a brief factual background and not intended to be a substitute for your review of the Veteran’s claims folder): * From approximately April 2009 through March 2014, the Veteran received Social Security Administration (SSA) disability insurance benefits until these benefits ceased in March 2014, when SSA noted that her condition improved to the point where she was able to perform simple tasks. See March 2014 SSA Notice of Disability Cessation. * Beginning in 2010 the Veteran became a college student and was in a nursing program off and on from 2011 to 2014, until she had to exit the vocational program in order to care for her children, one of whom had extensive medical problems. See November 2015 Special Report of Training (VA Form 28-1905d); January 2014 Telephone Primary Care Note by K.P., A.P.R.N.; June 2013 Special Report of Training (VA Form 28-1905d); October 2010 Veteran’s Schedule of Classes. * In September 2014, the Veteran reported that she was working as an independent distributor of supplements. See September 2014 Primary Care Outpatient Note by C.L., P.A. *In December 2016, her maternity care coordinator noted that she was a “stay at home mom” but could work from home. December 2016 Primary Care Telephone Encounter Note by K.P., A.P.R.N. *In February 2018, the Veteran reported that she was able to make up to $13,000 per month with her home-based business and that finances were not an issue. See February 2018 OEF/OIF Consult Note with H.E., L.I.C.S.W. *A February 2018 psychological examination, wherein the VA examiner did not take into account the Veteran’s complete psychological pathology, but opined that the Veteran has difficulty attending to or is easily distracted from the task at hand; significant difficulty functioning around other people, has difficulty functioning as a team member; sleep so disrupted that she is usually fatigued at work, which makes concentration and focus on work assignments difficult; depression such that she has difficulty sustaining energy and motivation to complete assignments at work; panic attacks, irritability and sleep disturbances that interfere significantly with her ability to work. See February 2018 VA Examination by A.L., Psy.D. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Lambert, Associate Counsel