Citation Nr: 20043774 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-06 692A DATE: June 29, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability based on individual unemployability (TDIU) prior to December 12, 2018. REASONS FOR REMAND The Veteran served honorably in the United States Army from October 1966 to October 1968. By way of background, the Veteran first filed a claim of entitlement to service connection for a mental health disorder, to include bipolar disorder and adjustment disorder, in October 1989. That claim was denied in a December 1989 rating decision. The Veteran did not appeal that decision and it became final. The Veteran filed a new claim for benefits in August 2010, to include for a mental health disorder. In a September 2012 rating decision, the AOJ, in pertinent part, confirmed and continued its denial of the Veteran’s service-connection claim for an adjustment disorder with avoiding personality disorder and bipolar disorder, denied entitlement to service connection for posttraumatic stress disorder, and denied entitlement to a TDIU. See a September 13, 2012 notice letter. The Veteran disagreed with all three issues and perfected an appeal. A June 2018 Board decision reopened the Veteran’s previously-denied service-connection claim for an acquired psychiatric disorder, to include bipolar disorder and adjustment disorder. The Board then expanded the Veteran’s claim to include consideration as to whether service connection may be awarded for any acquired psychiatric disability, to include PTSD, bipolar disorder and adjustment disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board remanded the expanded issue so that a VA mental health examination could be scheduled, and opinions could be obtained addressing the etiology of any diagnosed condition. The Board remanded the TDIU claim as inextricably intertwined with the psychiatric disorder service-connection claim. Subsequent to the June 2018 Board decision, the Veteran’s claimed stressor was verified, and an examination was provided to the Veteran. Crucially, the December 2018 VA examiner diagnosed both PTSD and “schizo-affective disorder, hypermanic with hallucinatory experiences.” Although the examiner provided a positive medical nexus opinion linking PTSD to the Veteran’s verified stressors, the examiner did not specifically address whether the Veteran’s separately diagnosed schizo-affective disorder was related to service and/or to his PTSD. In an April 2019 rating decision, the AOJ awarded service connection for PTSD only. The AOJ assigned a 30 percent rating from April 17, 2012, and a 100 percent rating from December 12, 2018. The assignment of an April 17, 2012 effective date was based on the date the AOJ identified the presence of the first Axis I diagnosis of PTSD documented in the Veteran’s treatment records. The rating decision made no mention of the Veteran’s schizo-affective disorder, nor did it indicate that the award was a full grant of the benefits sought on appeal. In fact, the rating decision specifically stated the following: “This represents a substantial grant of the benefit sought on appeal. If this decision satisfies your contentions, you may withdraw this portion of the appeal. To withdraw your appeal, you will need to submit a signed statement to that effect.” Although the Veteran did not disagree with the assigned ratings or effective date of his PTSD award, the Veteran also did not submit a withdrawal letter indicating his original contentions in this case were satisfied, as they pertained to his psychiatric disability claims. Nevertheless, in an April 2020 letter, sent to the Veteran more than one year after issuance of the April 2019 rating decision, the AOJ informed the Veteran that “the grant of post traumatic stress disorder noted by our letter to [the Veteran] on April 17, 2019 represents a grant of the benefit sought on appeal and that entitlement to service connection for an acquired psychiatric disorder to include PTSD, bipolar disorder and adjustment disorder is considered withdrawn.” As noted above, the Veteran did not formally withdraw his service-connection claim for an acquired psychiatric disability other than his now service-connected PTSD. The Veteran initiated appeals for both entitlement to service connection for PTSD and entitlement to service connection for other mental health disabilities, to include adjustment disorder and bipolar disorder in 2010. These were separately addressed by the AOJ in a September 2012 rating decision and a January 2015 Statement of the Case, and by the Board in its June 2018 decision, insofar as the non-PTSD claim needed to be reopened. For purposes of clarity and completeness, the Board then expanded the Veteran’s separate claims into one broader issue, encompassing consideration of an award of service connection for any diagnosed psychiatric disorder. The development ordered by the Board specifically noted that a VA examiner should (1) identify all diagnoses, and (2) provide a medical opinion addressing the etiology of each diagnosis. This was not completed, and the AOJ’s award of service connection for PTSD alone in April 2019 did not satisfy the Veteran’s longstanding appeal for an award of service connection for a psychiatric disability other than PTSD. As such, the question of whether service connection for an acquired psychiatric disability other than PTSD, to specifically include schizo-affective disorder, remains at issue and has not been withdrawn by the Veteran and remains pending. Remand is required so that the AOJ can ensure compliance with the Board’s prior June 2018 remand instructions, to include readjudication of the issue in a Supplemental Statement of the Case. As the development and outcome of the adjudication of the pending psychiatric disability service connection claim may have a bearing on the outcome of the Veteran’s TDIU claim, an adjudication of the TDIU claim is deferred at this time. However, the Board adds that should the Veteran remain ineligible for a schedular TDIU for all time periods prior to December 12, 2018 after the Veteran’s service-connection claim for a psychiatric disability other than PTSD is adjudicated, the TDIU claim should still be referred to the Director of Compensation Service for extraschedular consideration under the provisions of 38 C.F.R. § 4.16(b). The Board recognizes that an April 2012 VA mental health history assessment reported that the Veteran has been “fired from every job due to temper, anxiety, anger.” A July 2017 VA PTSD note similarly reported that the Veteran “has had difficulty holding jobs over the years” and that the Veteran “has problems with people in authority, becomes angry and resentful.” The matters are REMANDED for the following action: 1. Complete all development ordered by the Board in its June 2018 Remand instructions as it pertains to the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD, to now include schizo-affective disorder. This development specifically includes obtaining a medical opinion addressing the following questions: (a.) Is it at least as likely as not that the Veteran has an acquired psychiatric disability other than PTSD, to specifically include schizo-affective disorder, that had onset in, or is otherwise related to his period of active duty service, to include his in-service stressors? (b.) Notwithstanding the above, is it at least as likely as not that the Veteran has an acquired psychiatric disability other than PTSD, to specifically include schizo-affective disorder, that was caused or aggravated by his service-connected PTSD? All opinions should be supported by a medical explanation or rationale. If such questions cannot be answered without an in-person or virtual examination or interview, such should be scheduled. 2. Readjudicate the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD. 3. If after adjudication of the service-connection claim, the Veteran remains ineligible for a schedular TDIU award based on his combined rating, refer the TDIU claim to the Director, Compensation Service for a determination as to whether the Veteran is entitled to an assignment of a TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to December 12, 2018. Then readjudicate entitlement to a TDIU. 4. If the benefits sought remain denied, send the Veteran and his attorney as Supplemental Statement of the Case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.