Citation Nr: 20022074 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-08 762A DATE: March 30, 2020 REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) as of November 1, 2014, is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2000 to September 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In June 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In May 2018, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) as of November 1, 2014 is remanded. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claims for entitlement to a rating in excess of 70 percent for PTSD effective November 1, 2014 and entitlement to a total disability rating based on individual unemployability (TDIU). In May 2018, the Board remanded this matter for examination because the evidence of record showed a potential increase in severity of service-connected PTSD. Additionally, the Board sought a medical opinion as to the impact of PTSD on the Veteran’s vocational pursuits. At a December 2018 VA PTSD examination, the examiner was unable to diagnose or assess PTSD. The examiner stated that the Veteran was service-connected for PTSD. However, the examiner was unable to determine if the Veteran met the DSM-5 criteria for PTSD because the Veteran was not cooperative with the examination. The Veteran was administered two tests and the results from both tests were indicative of feigning symptoms. It was noteworthy that one of the tests was specifically standardized on a sample of Veterans applying for financial remuneration for a claim of disability resulting from PTSD. The examiner explained that the fact that the Veteran was not diagnosed with PTSD was not tantamount to saying that he did not have PTSD. Instead, it indicated that because the Veteran was uncooperative, the examiner was unable to differentiate possible legitimate symptoms from feigned symptoms. Because of that, the psychologist did not provide further information. The examiner concluded that he was unable to provide an opinion regarding the Veteran's occupational functioning. The Veteran was evaluated for 1.2 hours. That does not include time spent reviewing records. At the conclusion of the interview, the Veteran was given an opportunity to provide additional information and ask questions. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the record shows that an additional examination was conducted in December 2018, the examiner noted an inability to fully evaluate the current severity of the Veteran’s PTSD symptoms as he was uncooperative. Accordingly, that examiner’s findings were inconclusive. Although a current diagnosis of PTSD was acknowledged, the Veteran was described as uncooperative during the examination and therefore, the test results were inconclusive. In reaching the stated conclusion, the examiner noted an inability to differentiate between the legitimate symptoms from feigned symptoms. Thus, an opinion could not be offered as to whether the symptoms met the DSM-5 criteria for PTSD or the impact on the Veteran's occupational functioning. Accordingly, the Board finds that there has not been substantial compliance with May 2018 remand instructions. In the May 2018 remand, the Board asked for an opinion as to the levels of occupational and social impairment caused by the service-connected psychiatric disability and to describe the frequency and severity of symptoms resulting in those levels of impairment. The Board also asked the examiner to provide an opinion as to the impact of PTSD on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. To date, no examiner has provided any of the aforementioned opinions. The Board recognizes that has been influenced by the lack of cooperation from the Veteran. Nonetheless, the Board finds that opinions are needed. Accordingly, the Board finds that the December 2018 VA PTSD examination is incomplete, and that updated examinations are warranted to access the current severity and manifestations of the service-connected disability. After all outstanding medical records are associated with the claims file, more contemporaneous examination is needed to rate the Veteran’s claims for an increased rating for his psychiatric disability. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Finally, because a decision on the remanded issue of entitlement to an initial rating in excess of 70 percent for PTSD could significantly impact a decision on the issue of entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU), the Board finds that the issues are inextricably intertwined. Since that claim is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that derivative claim prior to the determination of the other claim. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of that claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). In approaching the new examination, the Veteran is reminded that the duty to assist is not a one-way street. A Veteran is required to cooperate with the examiner’s efforts to evaluate the nature and current severity of symptomology. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences for failure to cooperate with or report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The Veteran is placed on notice that pursuant to 38 C.F.R. § 3.655 failure to cooperate during the requested VA examination may result in an adverse determination. Connolly v. Derwinski, 1 Vet. App. 566 (1991). The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for a psychiatric disability. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims folder. 2. Schedule the Veteran for a VA mental disorders examination with a psychiatrist examiner who has not previously examined the Veteran in conjunction with this claim. The examiner must review the claims file and should note that review in the report. The examiner should opine as to the levels of occupational and social impairment caused by the service-connected psychiatric disability, and should describe the symptoms, and their frequency and severity, that result in those levels of impairment. The examiner should reconcile those findings with the findings in previous examinations of record and provide a complete rationale for all conclusions reached. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disability, which is consistent with his education and training. If the Veteran is felt capable of work despite the service-connected disability, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.