Citation Nr: 20072097 Decision Date: 11/09/20 Archive Date: 11/09/20 DOCKET NO. 07-18 540 DATE: November 9, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to January 15, 2014, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1974 to July 1977 and from March 1978 to April 1988. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2006 rating decision that denied a TDIU rating. In October 2014 a hearing was held before the undersigned in Washington, D.C.; a transcript is in the record. An interim ( July 2016 ) rating decision granted TDIU effective January 15, 2014. The Veteran continued his appeal seeking TDIU prior to that date. An August 2017 Board decision denied him a TDIU rating prior to January 15, 2014. He appealed that decision to the Court of Appeals for Veterans Claims (CAVC). A March 2018 CAVC Order vacated the portion of the Board’s August 2017 decision that denied TDIU prior to January 15, 2014 and remanded it to the Board for further development and re-adjudication consistent with terms of a Joint Motion for Partial Remand (JMPR). In July 2018 the case was remanded for further development. While the Board regrets the further delay in resolution of this matter, it finds a remand for further evidentiary development unavoidable. In the July 2018 remand, the Board noted that although the parties to the JMPR agreed that a September 2013 VA disability benefits questionnaire (DBQ) report was probative evidence that the Veteran was rendered unemployable by his service-connected psychiatric disability, it was difficult to assess the probative value of the September 2013 mental disorder DBQ as it was presented. The Board directed that development be conducted to determine whether the September 2013 provider reviewed the file, the bases for his conclusions, and the level of his expertise. Unfortunately, another VA provider responded to the directive and indicated that the September 2013 provider was a doctor (but did not indicate what type), that he no longer performed compensation and pension examinations for that VA facility, and that she could only speculate as to his conclusions. However, the Board also directed in its July 2018 remand that the Veteran’s file be sent to a VA psychiatrist or psychologist for review and a retrospective opinion regarding the impact the Veteran’s service-connected psychiatric disability would have been expected to have on his occupational functioning from 2006 until January 15, 2014. In a July 2020 mental disorders DBQ, it was noted that the Veteran had chronic spinal pain secondary to a service-connected spinal stenosis that caused and exacerbated symptoms of dysthymia and that he had not been employed since 1999. In a July 2020 mental disorders opinion, the provider noted that he was unable to locate service treatment records (STRs) that offered a diagnosis of dysthymia, such disorder was due to the Veteran’s chronic spinal pain and service-connected spinal stenosis, and that his unemployability was less likely due to a “mental evaluation during service,” and more likely due to his back disability. The provider also noted that the Veteran’s current back pain lead to depression which interfered with his daily functioning. The opinion is inadequate for rating purposes because it essentially focuses on the current impact of the Veteran’s back disability on functioning instead of the impact of the psychiatric disability on functioning from 2002 to January 15, 2014. A remand for an adequate medical advisory opinion is necessary. In June 2019 VA requested that the Veteran identify all providers of psychiatric evaluations and treatment he received from 2002 to January 15, 2014, and to provide authorizations for VA to obtain updated, to the present, records of any such private evaluations or treatment that may be outstanding. In June 2019 he responded that all of his mental health treatment was provided at VAMC Baltimore. VA treatment records were requested and received. And considering the Veteran’s response no further attempt to obtain private mental health records is indicated; based on the Veteran’s response, it must be assumed there are none. The Board also notes that a formal determination was made for the record regarding whether the matter of entitlement to a TDIU rating prior to January 15, 2014, warrants referral to the Director of Compensation for consideration of an extraschedular award of TDIU. However, that determination was based on an inadequate medical opinion; another request for a formal determination upon receipt of an adequate opinion may be necessary. The matter is REMANDED for the following: 1. Arrange for the Veteran’s record to be forwarded to a VA psychiatrist or psychologist for review and a retrospective opinion regarding the impact the Veteran’s service-connected psychiatric disability would have been expected to have on his occupational functioning from 2006 until January 15, 2014. (a) The consulting provider should indicate whether there is any support in the evidentiary record (apart from the September 2013 DBQ examination report) that prior to January 15, 2014, the psychiatric disability had a substantial impact on his employability/rendered him unemployable. If there is such evidence, it should be noted in detail. (b) The provider should also identify any periods (from October 2006 to January 15, 2014) when symptoms of the Veteran’s psychiatric disability varied (in impact on employability, and if so, to what degree). The provider should express agreement or disagreement with the conclusions reached by the September 2013 VA examiner, based on available evidence, regarding the impact of the Veteran’s disability on his employability and include rationale for the agreement or disagreement. 2.Then, review the entire record and make a formal determination regarding whether the matter of entitlement to a TDIU rating prior to January 15, 2014, warrants referral to the Director of Compensation for consideration of an extraschedular award of TDIU. If so, prepare the appropriate summary, and refer the case to the Director of Compensation. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.