Citation Nr: 1816396 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 13-16 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) due to service-connected PTSD. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Board issued a decision which denied an increased evaluation for PTSD. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court issued an Order that granted a Joint Motion of the Parties (Joint Motion) to vacate the Board's decision and return this matter to the Board for further consideration. In September 2016, the Board remanded the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required to obtain compliance with a September 2016 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Historically, a December 2015 Joint Motion for Remand (JMR), found that the Board did not adequately the conflict between a March 2012 VA examination and February 2013 VA examination. In a March 2012 examination, the diagnoses were adjustment disorder with mixed anxiety and depressed mood and PTSD. The examiner opined that the Veteran's hospitalization for suicide attempts was directly tied to his financial problems but not his symptoms of PTSD. In a February 2013 VA examination, the examiner opined that the only diagnosis was chronic PTSD, and that the Veteran's later financial troubles likely reactivated and worsened his PTSD symptoms. The JMR agreed that the two medical opinions were in conflict as to whether the Veteran's financial stressors - and thus, his suicidal attempts - were linked to a separate non-service connected adjustment disorder, or if it was attributable to his service-connected PTSD. In the September 2016 Board remand, the RO was directed to obtain a VA examination that assessed the severity of the Veteran's PTSD and also provide opinions regarding whether non-service-connected psychiatric disorders were caused or aggravated by the service-connected PTSD. The November 2016 VA examiner found that PTSD was the only service-connected disorder, but did not address the prior psychiatric diagnoses of record and then later reported that testing was suggestive of severe depression and severe anxiety. These conflicts must be reconciled. With respect to the Veteran's claim for a TDIU rating, the Board finds that this claim is inextricably intertwined with his pending increased rating claim. The TDIU claim cannot be reviewed while the pending claims remain unresolved. Thus, adjudication of the TDIU claim must be held in abeyance pending further development of the Veteran's increased rating claim. Accordingly, the case is REMANDED for the following action: 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 or her 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, 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 any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must opine whether there are any non-PTSD psychiatric disorders. If the examiner finds that there are not, the examiner must address the prior diagnoses of record, to include the prior diagnosis of adjustment disorder. Second, the examiner must assess the severity of the PTSD utilizing the appropriate Disability Benefits Questionnaire. Third, for any non-PTSD psychiatric disorder, the examiner must opine whether it is caused by, aggravated by, or is part and parcel, of the service-connected PTSD. Fourth, the examiner must attempt to reconcile the 2013 and 2012 VA examination report findings regarding which disorders caused the suicide attempts or note whether symptoms related to the various diagnoses can or cannot be differentiated from each other. The examiner must address the April 2016 private opinion that the symptoms of the Veteran's psychiatric disorders cannot be differentiated. Fifth, the examiner must assess the effects of the Veteran's PTSD on his employment and address the April 2016 private opinion. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. 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 paragraphs above, the claims 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 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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) (2016).