Citation Nr: 1807129 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-22 824A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent disabling, for the period prior to August 30, 2013, and in excess of 70 percent disabling thereafter, for posttraumatic stress disorder. 2. Entitlement to a total disability rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and G.M. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran has since moved and his case is now in the jurisdiction of the RO in San Diego, California. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2013. The transcript of this hearing has been associated with the claims file. The record, specifically the January 2013 Statement from the Veteran, raises a claim of entitlement to service connection for the Veteran's fibromyalgia as secondary to his PTSD. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over it, and this issue is REFERRED to the AOJ for appropriate action. In a May 2016 decision, the Board denied entitlement to an evaluation in excess of 30 percent for PTSD, for the period prior to August 30, 2013, and remanded entitlement to an evaluation in excess of 70 percent, for the period beginning August 30, 2013, and entitlement to a total disability rating based on individual employability due to service-connected disability (TDIU). The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In April 2017 the Court granted a Joint Motion for Partial Remand (JMPR) vacating that part of the Board's decision denying an evaluation in excess of 30 percent for PTSD, for the period prior to August 30, 2013. The claim of entitlement to an initial evaluation in excess of 30 percent disabling, for the period prior to August 30, 2013, for PTSD, was before the Board in December 2017 when it was remanded as intertwined with the continued development of the issues of entitlement to an evaluation in excess of 70 percent for PTSD, for the period beginning August 30, 2013, and entitlement to a TDIU. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's representative has submitted a private psychological assessment dated in September 2017. The psychologist opined that the Veteran's symptoms of PTSD were severe and had at least as likely as not caused him occupational and social impairment, with deficiencies in most areas since at least August 2009, to the present. The provider further opined that the Veteran's PTSD ultimately rendered him fully unable to successfully secure and follow substantially gainful employment since April 2008, when he last worked, to the present. In rendering the opinion, the psychologist referred to VA treatment records associated with the claims file as well as interview of the Veteran. The psychologist reported that the Veteran's severe level of distress remained severe and persistent to the present. Reported symptoms included recurrent thoughts; traumatic nightmares; flashbacks; intense and prolonged distress and marked physiologic activity following exposure to traumatic reminders; avoiding memories, thoughts, feelings, and trauma-related external reminders; negative beliefs and expectations; negative emotional state; diminished interests; alienation; constricted affect; irritability; self-destructive behavior; hypervigilance; exaggerated startle response; problems with concentration; the inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, and sleep disturbance. The psychologist stated that these symptoms and limitations were documented in the record as far back as 2009, and prior. However, review of the treatment records prior to August 2013 reveal reports of perception within normal limits, thought process within normal limits, thought content within normal limits, normal speech, absence of suicidal or homicidal ideation, and absence of delusions or hallucinations. The VA treatment records do not reflect the same level of disability. Therefore, the rationale provided by the psychologist to support her opinion that the Veteran's symptoms of PTSD were severe and had at least as likely as not caused him occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking and mood since at least August 2009, to the present, is unclear. As such, the Board finds that a retrospective medical opinion is necessary to determine the severity of the Veteran's PTSD disability and the functional limitations of the Veteran's PTSD for the period prior to August 30, 2013. Chotta v. Peake, 22 Vet. App. 80 (2008). In the May 2016 remand, the Board ordered that the claims of entitlement to a higher evaluation for PTSD, for the period beginning August 30, 2013, and entitlement to a TDIU be readjudicated and, if they remained denied, an appropriate Supplemental Statement of the Case (SSOC) be issued. Thereafter, in July 2017 a SSOC was issued only with regard to the Veteran's claim for a higher evaluation for PTSD. In December 2017, the Board ordered that the Veteran's claims for a higher rating for PTSD for the period prior to and beginning August 30, 2013, and TDIU be readjudicated and, if they remained denied, an appropriate SSOC be issued. Review of the record does not reveal readjudication or issuance of a SSOC with regard to the claim for a higher rating for PTSD for the period prior to and beginning August 30, 2013, and TDIU has been accomplished. As such, the claims must be remanded for completion of the actions ordered by the Board. See Stegall v. West, 11 Vet. App. 268 (1998). On remand, attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since July 2017. 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records regarding the Veteran dated since July 2017. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Forward the claims folder to an appropriate examiner to obtain a retrospective opinion as to the severity of the Veteran's PTSD prior to August 30, 2013, and the Veteran's functional impairment due to service connected disabilities during the period before and after August 30, 2013. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. The examiner must comment upon the September 2017 private psychologist report regarding the severity of the Veteran's PTSD. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Upon completion of the above, readjudicate the claims. If the benefits sought on appeal remain denied, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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 that are 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 (2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), 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).