Citation Nr: 1807957 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 08-23 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date earlier than November 26, 2002 for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 50 percent for PTSD prior to October 2, 2015 and in excess of 70 percent beginning on October 2, 2015. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, on brokerage from the RO in Atlanta, Georgia, which retains original jurisdiction. This rating decision granted entitlement to service connection for PTSD, and assigned a disability rating of 50 percent effective October 2, 2005, the date the Veteran's formal claim was received. The Veteran testified before the undersigned at a January 2011 hearing at the RO. A transcript has been associated with the file. In an April 2014 decision, the Board granted an earlier effective date of November 26, 2002 for service connection for PTSD and remanded the claims for an increased rating for PTSD and for entitlement to a TDIU for further development. The Veteran appealed the issue of entitlement to an earlier effective for service connection for PTSD. In a June 2015 Order, the Court of Appeals for Veterans Claims (Court) upheld a Joint Motion of the parties and remanded this claim back to the Board for action consistent with the Joint Motion. In July 2015, the Board remanded these matters for action consistent with the Joint Motion. While on remand, the RO granted a 70 percent rating for PTSD, effective October 2, 2015. When the case was most recently before the Board in June 2017 it was remanded for additional development. The issues of entitlement to an earlier effective date for the grant of service connection for PTSD and entitlement to an increased rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected disability (PTSD) does not render him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is service connected for PTSD, rated as 70 percent disabling. As such, he meets the schedular criteria for TDIU. 38 C.F.R. § 4.16 (2017). However, the evidence of record does not show that the Veteran is unable to obtain and maintain substantially gainful employment due solely to his service-connected disability. In his May 2015 VA Form 21-8940, the Veteran stated that he last worked full-time in July 2002 and became too disabled to work around September 2002. He indicated that he left his last job in maintenance because of his PTSD and has not been able to find employment since then. The record reflects that the Veteran's employment history includes working as a maintenance technician. A March 2006 VA examination report reflects that the Veteran had difficulties with employment in the 1970s because he was "drugged out." At this time, the Veteran did not describe any employment post 1970s and did not allege he was unemployable due to his PTSD. The examiner stated, "[m]entally, he occasionally has some interference in performing activities of daily living because the claimant can't hold a job secondary to fear." The examiner also stated that since the Veteran developed his mental condition, he has difficulty maintaining a job. An August 2008 VA examination report reflects that the Veteran is not unemployable. It was noted that the Veteran had been fired from his last job for insubordination. The January 2012 VA examination report reflects the Veteran's report that he has not worked since 2002. He reported that he does not wish to have a job because he does not like people or authority. When asked if his PTSD is affecting his ability to work, he indicated that he did not know, that he has authority problems, and he was this way before the war. In this regard, the Veteran reported that he is assisting his disabled aunt at home. The home health nurse taught him how to change her bandages and assist her in other ways around the house. He drives her to appointments and encourages her to move around. The examiner opined that the Veteran's PTSD does not render him unable to secure and follow a substantially gainful occupation. The examiner reasoned that the Veteran reportedly engages in many work-like settings, such as assisting his aunt, assisting a neighbor with yard work and spending time at a computer. Of significance was the Veteran's reported difficulty with authority. Because the Veteran indicated that it has been present since childhood, the examiner opined that it cannot be attributed to his PTSD. The October 2015 examination report indicates that the Veteran was last employed as a maintenance technician at a hotel in 2002. He was terminated from that employment. The examiner noted that as far as employability, the Veteran has a high school diploma, has no cognitive or intellectual deficits and given the Veteran's statement that he did not want to have to constantly flatter or cater to his supervisor in order to maintain a job, it appears as if the Veteran's inability to interact appropriately with others and conform to social norms have been his greatest hindrance to maintaining employment. However, while these characteristics are problematic, they are not deemed characteristic of his PTSD and do not preclude engaging in substantial gainful employment. The examiner found that the fact that the Veteran was able to care for his elderly aunt serves as evidence of his employability. The examiner opined that the Veteran would do well in a position that allows him to work independently. The October 2017 VA examination report reflects that after service the Veteran received a landscaping certificate and worked at a hotel in various capacities. The examiner noted that a 2012 opinion report found that the PTSD did not affect his ability to work. The examiner agreed with the 2012 opinion. The examiner indicated that if employed, the Veteran is capable of working at an average pace; he is not at risk for experiencing difficulty adapting to work-related stress. The Board has also considered the Veteran's VA treatment records. They do not contradict the VA examination reports described above. In sum, the Board finds that the medical evidence reflects that the Veteran's PTSD does not render him unemployable. The Board acknowledges the Veteran's assertions regarding his symptoms and the effects of his service-connected PTSD on his ability to obtain and maintain substantially gainful employment as well as the March 2006 opinion that the Veteran cannot hold a job due to fear. However, after thorough consideration of the record, the Board concludes that the preponderance of the evidence demonstrates that the Veteran's PTSD is not so significant as to preclude him from obtaining and maintaining gainful employment. In this regard, the March 2006 finding was isolated, fear was not even described as a symptom of PTSD, and there is no supporting rationale or corroborating evidence within the examination report to show that it is in fact the Veteran's PTSD that renders him unemployable. Additionally, the examiner also opined that the Veteran's PTSD causes him difficulty holding a job, but did not say that the PTSD precluded employment. In this regard, it is important for the Veteran to understand that there is now a highly significant amount of highly probative medical evidence that provide evidence against this claim that the Board simply cannot ignore. While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment due to his PTSD is beyond his medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, any such lay statements regarding him being unable to work are not competent or sufficient. Importantly, he has not been found to be unemployable due to his PTSD by any medical professional and instead appears to have some difficulty interacting with others that is unrelated to his PTSD. Further, as noted above, some of the Veteran's own prior statements do not support the finding that the Veteran cannot work due to his PTSD. In this case, the Veteran's most probative statements, as cited above, provide highly probative evidence against this claim. Simply stated, both the best factual evidence, sometimes in the form of the Veteran's own statements as to why he is not working, and the best medical evidence, in the form of the examinations cited above, provides evidence against this claim. The Board observes that the currently assigned PTSD ratings recognize that the impairment due to his PTSD makes it difficult to obtain and keep employment. However, the ultimate question in determining entitlement to a TDIU is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). If the Veteran did not have problems with his PTSD, there would be no basis for the 70% evaluation. While the Veteran meets the schedular criteria for consideration of the assignment of TDIU, there is no indication from the record at any time that he is unable to obtain and maintain substantially gainful employment solely as a result of his service-connected PTSD. In fact, the preponderance of the evidence of record tends to show just the opposite, that he is employable, because he engages in work-like activities. Accordingly, the Board concludes that the preponderance of the evidence is against the TDIU claim, and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its July 2015 and June 2017 remands. Specifically, the July 2015 Board remand instructed the AOJ to obtain the Veteran's disability benefits records from the Social Security Administration (SSA) and to obtain the Veteran's VA treatment records dating from June 2011 to the present. Additionally, it was instructed that a VA examination be conducted and opinion be obtained regarding the Veteran's employability. The June 2017 remand instructed the AOJ to provide the Veteran with a VA examination with an opinion regarding employability. The record reflects that the Veteran's SSA disability benefits records are unavailable because they were destroyed. In an October 2015 letter the Veteran was notified that his SSA records were unavailable; he was requested to submit them. The requested VA treatment records were obtained and associated with the record. Finally, when considered together, the October 2015 and October 2017 VA examination reports substantially comply with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). ORDER Entitlement to TDIU is denied. REMAND Although the Board regrets the additional delay, the Board finds that additional development is required. When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). The October 2017 VA examination report reflects that the Veteran does not currently meet the full criteria for a diagnosis of PTSD; however, it also indicates that there is no change in the longstanding diagnosis of PTSD (it is currently quiescent) and that the Veteran has more than one mental disorder diagnosed. Unfortunately the examination report does not reflect any diagnosis other than PTSD. Due to the inconsistencies in the examination report, the Board finds that a remand is required. With regard to the claim of entitlement to an earlier effective date for the grant of service connection for PTSD, the June 2017 Board remand instructed that the Veteran be provided with a new VA examination. The VA examiner was instructed to provide an opinion regarding whether the Veteran's PTSD was manifested prior to November 2002. In rendering the opinion the examiner was instructed to address the Veteran's report that his symptoms began in in August 1970 and the significance of that date, the circumstances of the Veteran's discharge from service (including addressing any relevant service personnel records), the Veteran's report to medical providers in November 2002 that his PTSD symptoms began earlier, the Veteran's September 1981 informal claim requesting evaluation for "after stress reaction nerves", lay statements attesting to the Veteran's mental state prior to November 2002, and the significance, if any, of his incarceration. The AOJ was then instructed to review the psychiatric examination report to ensure complete compliance with the remand instructions. A review of the October 2017 VA medical opinion report obtained pursuant to the remand reflects that the examiner could not provide a retrospective opinion without resorting to speculation because there are no treatment records to support the existence of any trauma related symptoms prior to 2002, the service treatment records are silent for evidence of mental or emotional distress, complaints, evaluations, and treatment, and the Veteran's work history is also silent for impairment prior to 2002. As such, the Board finds that the October 2017 opinion report is incomplete insofar as it does not address the above listed evidence specified in the remand. Therefore, the AOJ did not accomplish the objectives set forth in the June 2017 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Consequently, a remand is required. Accordingly, the case is REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the October 2017 VA examiner (who also provided the October 2017 retrospective opinion), if available, in order to obtain an addendum retrospective opinion and clarification regarding the October 2017 VA PTSD examination report. The examiner must review the claims file and address the following: Please clarify the October 2017 VA examination report findings that the Veteran has more than one mental health diagnosis (Part 3A - Differentiation of Symptoms) with the lack of any diagnosis other than PTSD (Part 2 - Current Diagnoses). Regarding the retrospective opinion, the examiner must review the Veteran's claims file, including the service treatment records, personnel records, post-service medical records, the Veteran's January 2011 hearing testimony, and any other information deemed pertinent, to include witness statements. Additionally, a review of the Joint Motion from the Court may help the examiner understand why the Board is requesting this "retrospective opinion". The examiner should determine, based on the Veteran's military, medical, and psychiatric history, whether a PTSD diagnosis according to the DSM criteria in effect from 1981 to 2002 had become manifest any earlier than November 2002. If so, the examiner should identify when the diagnosis was first present, the severity of his symptoms, and the impact of the symptoms on employability. In rendering the opinion, the examiner should address the following: (a) the Veteran's report that his symptoms began in August 1970 and the significance of that date (if any); (b) the circumstances of the Veteran's discharge, to include addressing pertinent personnel records, such as performance reviews and disciplinary reports, if available; (c) the Veteran's report to medical providers in November 2002 that his symptoms began earlier; (d) the Veteran's informal claim submitted in September 1981 requesting evaluation for "after stress reaction nerves"; (e) lay statements attesting to the Veteran's mental state prior to 2002; and (f) the significance, if any, of his incarceration. The examiner should provide a complete rationale for all opinions provided. If the examiner cannot provide any requested opinion without resorting to speculation, the examiner should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the requested opinions cannot be provided without additional examination of the Veteran, such an examination should be provided. 2. This is a complex case back from the Veterans Court. Review the VA psychiatric examination report and opinions provided to ensure that they are in complete compliance with the remand instructions. If not, take appropriate corrective action. 3. Readjudicate the claims. If any remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs