Citation Nr: 20030132 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 16-27 968 DATE: April 29, 2020 REMANDED Entitlement to a rating in excess of 70 percent for post-traumatic stress (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to March 1971 in the United States Army. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. See Hearing Transcript (November 2018). 1. A rating in excess of 70 percent for PTSD is remanded. 2. TDIU is remanded. Issues: 1-2: To ensure that VA has met its duty to assist, remand is necessary. In May 2019, the Board remanded the appeal so that the Veteran could be afforded a VA examination to assess his PTSD symptomatology and to provide opinion as to any effects of the symptoms on his social and occupational functioning. Although the requested examination was obtained, the Board finds that there has not been substantial compliance with the remand directives; as such, remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). The May 2019 Board decision included the following remand directive: The examiner must attempt to elicit information regarding the severity, frequency, and duration of (PTSD) symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. The June 2019 examination report reflects occupational and social impairment with reduced reliability and productivity. The Veteran reported experiencing high levels of stress. Although he reported suicidal thoughts “that come in and out of his hed [sic],” he stated he could not do it because of his kids and that he has good checks and balances; also, he denied any current or recent suicidal thoughts, intent, or plan for self-directed violence. The report lists the Veteran’s PTSD symptoms as: anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances including work and work-life setting. See C&P Exam (June 2019). The examination report does not reflect any indication or meaningful discussion of the the severity, frequency, and duration of the listed symptoms other than his panic attacks. Also, although not listed as symptoms, the report shows under the heading of “PTSD Diagnostic Criteria,” that the Veteran has alterations in cognition (e.g. inability to remember things) that occurs “more than 1 month.” Further, under the same heading, the report shows symptoms of irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, and sleep disturbance without any indication of the frequency, duration, or frequency. Therefore, the Board finds the examination inadequate for rating purposes. See Stegall at 268 (1998). As such, remand is required for another VA examination. Lastly, the Board observes that the Veteran’s representative argues that the Veteran had not received any notification from VA regarding establishment of his TDIU claim following May 2019 Board remand. See Appellate Brief (April 2020). However, the Board finds that this is not accurate. The record shows that the RO sent to the Veteran a June 2019 letter notifying him of how to file a claim for TDIU using the correct form. The Veteran is not required to file a claim for TDIU in this case given that he has a pending claim for increase. Rice v. Shinseki, 22 Vet. App. 447, 454 (TDIU is part and parcel of a claim for increased compensation when evidence of unemployability is submitted). However, the Board finds that the completion of VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) would ensure that VA had relevant information on the claimant’s employment and educational background and potentially allow for additional development that would aid in substantiating the claim. Hence, the Veteran should be afforded another opportunity to submit a completed VA Form 21-8940. There has been no response. The Veteran is reminded that VA’s duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in determining entitlement to the benefit sought. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form and conduct any development deemed necessary on that claim. 2. Obtain the Veteran’s VA treatment records for the period from December 2019 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. For TDIU purposes, the examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his PTSD on employment. The examiner should identify all limitations or functional impairment caused solely by PTSD. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, Associate 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.