Citation Nr: 1808626 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-04 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) and depression in excess of 10 percent from November 7, 2007 to February 13, 2014, in excess of 70 percent from February 14, 2014 to January 3, 2016, and in excess of 50 percent since January 4, 2016. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from February 14, 2014 to January 3, 2016. 3. Entitlement to a TDIU for the period prior to February 14, 2014 and for the period from January 4, 2016. REPRESENTATION Veteran represented by: Tennessee Department of Veterans Affairs ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1961 to July 1961 and the U.S. Navy from June 1967 to October 1968. He also had periods of service with the Army National Guard of Tennessee. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision of the San Diego, California, Regional Office (RO). In October 2013 and February 2017, the Board remanded the appeal to the RO for additional action. In February 2017, the Board assumed jurisdiction over the appeal as to the initial ratings assigned for service-connected PTSD with depression for the limited purpose of remanding the claim for the issuance of a Statement of the Case (SOC). In November 2017, an SOC was issued. In a November 2017 argument, the Veteran's representative presented argument in favor of an increased rating for the staged ratings presently assigned for service-connected PTSD. The argument clearly was made to advance the Veteran's assertions regarding the evaluations assigned for his PTSD. The Board accepts the November 2017 statement as a timely substantive appeal, in lieu of VA Form 9, Appeal to Board of Veterans' Appeals. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017); Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a substantive appeal is not jurisdictional in nature). Thus, the Veteran's appeal of entitlement to an increased rating for service-connected PTSD and depression is properly before the Board for appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains a copy of a February 2014 VA mental disorder examination. Otherwise, LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The claims of entitlement to a TDIU prior to February 14, 2014 and on and after January 4, 2016, and entitlement to increased ratings 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 From February 14, 2014, to January 3, 2016, the Veteran's service-connected PTSD rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW From February 14, 2014, to January 3, 2016, the criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014), 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board is remanding the claim of entitlement to a TDIU prior to February 14, 2014, and on and after January 4, 2016. Discussion will not be provided regarding those time period in the instant decision. The Board will only be discussing whether a TDIU is warranted from February 14, 2014, to January 3, 2016. As the Board makes no decision unfavorable to the Veteran in the instant decision, any error in VA's efforts to notify and assist the Veteran is harmless. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. 38 C.F.R. § 4.16 provides that "Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities" 38 CFR 3.340 (a)(1) provides that a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to individual unemployability includes consideration of all service-connected disabilities. Here, the Veteran meets the schedular criteria for a TDIU from February 14, 2014, to January 3, 2016. During this time period, he has been service-connected with PTSD, rated as 70 percent disabling. For this time period, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). Thus, the only remaining consideration is whether the Veteran's PTSD alone rendered him unable to secure or follow substantially gainful employment from February 14, 2014, to January 3, 2016. The Board resolves reasonable doubt in the Veteran's favor and finds for the Veteran for this time period. VA provided an examination for the Veteran's service-connected PTSD with depression on February 14, 2014. Directed by the Board in the October 2013 remand, it was the first VA mental health examination conducted during the appeal period. The Veteran's highest form of education was listed as the 10th grade. He had a previous work history as a mechanic, but he had not worked since 1995 when he was involved in a motor vehicle accident that hurt his back and neck. The Veteran had not been able to work since. Prior to his accident, even when he was physically able to work, he had worked as a mechanic mostly on his own. The examiner related that the Veteran had experienced difficulties working for companies or garages because of his alcohol problem. The Veteran would only drive locally due to his back problems and his "forgetting". He had support from his wife and his step-children, and he reportedly had one friend with whom he could speak. The examiner noted that the Veteran did not have any true hobbies other than whittling and watching television. In the assessment, the examiner referred to his interview with the Veteran and a review of his medical records in finding that the Veteran had a current diagnosis of PTSD chronic, and major depressive disorder, recurrent severe with psychotic symptoms. The Veteran's social and economic situation was consistent with these diagnoses and current mental status examination. The examiner reviewed the Veteran's mental health history, noting that all other mental diagnoses the Veteran has had were "colored and flavored" by the Veteran's past alcohol abuse. Regardless, the alcohol abuse appeared to stem from his in-service sexual assault and was perhaps exacerbated by the trauma the Veteran experienced while in combat. The Veteran also had psychotic symptoms, as he would hallucinate at times. Some of these hallucinations were flashbacks, but others were not. The examiner found that the effect of the PTSD and depression on the Veteran's occupational and social functioning would be to cause deficiencies in all areas. The examiner explained that the Veteran had officially been unable to work since he had his back and neck injury. However, prior to his 1995 injuries he had tried to work, but the longest he could stay in a job was three months because of alcohol abuse secondary to PTSD. The examiner found that the Veteran appeared to be deficient occupationally and socially in that he could not tolerate crowds, being around people, having difficulty with interpersonal relationships, and being distant from everyone except his wife and her children. From February 2014 to January 2016, the evidence of record is otherwise sparse pertaining to the issue of whether the Veteran was unemployable as a result of his service-connected mental disorders. However, the Board finds that the February 2014 VA examination is sufficient evidence to decide in the Veteran's favor. Specifically, the February 2014 VA examiner found that the Veteran's service-connected PTSD and depression would cause deficiencies in all areas, specifically finding that the Veteran had not been able to hold a job as a result of substance abuse that was caused by his psychiatric disorders. This was true prior to the Veteran sustained orthopedic injuries in 1995 that rendered him unemployable due to physical limitations. The Board acknowledges that the Veteran has multiple serious nonservice-connected disorders that likely impact his ability to work. That being said, it is clear, and the February 2014 VA examiner indicated, that the Veteran's ability to work was severely limited by his service-connected PTSD and depression. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that a TDIU is warranted from February 14, 2014, to January 3, 2016, the period during which he is presently assigned 70 percent disability rating for underlying service-connected PTSD and depression. ORDER From February 14, 2014, to January 3, 2016, a TDIU is granted. REMAND Remand is required to obtain outstanding treatment records for the Veteran's service-connected PTSD. A February 2009 Vet Center Intake form documents the Veteran reporting delusions and hallucinations, and suicidal ideation, among other symptoms. Records from the Vet Center up through May 2009 have been obtained. As the first VA examination of record for the Veteran's service-connected PTSD and depression was in February 2014, records of psychiatric treatment prior to that date are essential for ascertaining the severity of his condition prior to that date. Thus, remand is necessary to obtain outstanding records of psychiatric counseling from the Vet Counseling Center in Knoxville, Tennessee. The Board finds that the Veteran's claim for increased initial ratings for PTSD and depression is inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, remand of the issue of entitlement to a TDIU is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, to include an authorization to obtain documents from the Knoxville Vet Center, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claims remaining on appeal must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs