Citation Nr: 20046877 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 03-03 091A DATE: July 13, 2020 REMANDED The issue of a total disability rating based on individual unemployability (TDIU) prior to December 6, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran testified at a Board hearing before Veterans Law Judge Auer. In May 2012, the Veteran testified at a Board hearing before Veterans Law Judge March. Generally, Veterans Law Judges who conduct hearings must participate in making the final determination of the claims involved. 38 U.S.C. § 7107(c); 38C.F.R. §20.707. By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38U.S.C. §7102(a). When a Veteran has hearings before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held. The Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). During the May 2012 Board hearing, Veterans Law Judge March advised the Veteran of his right to a third hearing before a third Veterans Law Judge. The Veteran waived his right to appear at an additional hearing before a third Veterans Law Judge, who would be assigned to decide his appeal. Accordingly, there is no impediment in issuing the panel decision herein. The appeal has been remanded four times, most recently in November 2019, to obtain additional information, documents, and medical examinations. Although the Board regrets the delay in yet another remand, the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives and further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268. The issue of a TDIU prior to December 6, 2011, is remanded. In November 2019, the appeal was remanded to obtain the Veteran’s tax forms, from the Internal Revenue Service (IRS), regarding his income from 1999 to 2011 and to obtain a retroactive opinion concerning the occupational impact of his service-connected posttraumatic stress disorder (PTSD) for the period of March 29, 1999, through December 5, 2011. Further, the remand directives requested that in the retroactive opinion, the VA opinion provider should describe the Veteran’s limitations and restrictions imposed by his service-connected PTSD. In a March 2020 VA opinion, the VA examiner found that the Veteran’s PTSD symptoms impacted his ability to function in a work setting but did “not preclude employment.” The examiner did not provide a rationale, other than indicating that medical professionals (from outside the time period on appeal) found that the Veteran’s service-connected disabilities did not impair his ability to perform tasks associated with employment. Also, the examiner noted some of the findings and symptoms from the Veteran’s psychiatric treatment from 1999 to 2001. In an April 2020 statement, the Veteran’s attorney asserted that the March 2020 VA opinion was erroneous, as it did not contain sufficient detail or analysis to support the opinion and that the March 2020 examiner considered evidence outside the time period on appeal. Indeed, the March 2020 opinion is flawed. The examiner did not describe the Veteran’s limitations and restrictions imposed by his PTSD and considered evidence outside the time period on appeal. Accordingly, a remand is warranted to obtain a retrospective opinion concerning the Veteran’s occupational impact of PTSD from March 29, 1999, to December 5, 2011. With respect to the tax forms, although the AOJ requested the Veteran to submit tax forms regarding his income from 1999 to 2011, the AOJ did not request the Veteran’s tax forms from the IRS. Furthermore, in December 2019 and January 2020 statements, the Veteran’s attorney indicated that the Veteran requested his tax records and that they would be forthcoming and forwarded upon receipt. To date, no tax forms have been submitted. Notably, since May 2018, the Veteran’s attorney has submitted statements indicating that tax records would be forthcoming. Upon remand, one last request, from the IRS, should be made to obtain the Veteran’s tax forms regarding his income from 1999 to 2011. The matter is REMANDED for the following action: 1. Request records from the Internal Revenue Service regarding the Veteran’s IRS tax forms and any related documents pertaining to his income from 1999 through 2011. If the requested records do not exist, issue a formal finding of availability, and provide a copy to the Veteran and his attorney in accordance with 38 C.F.R. § 3.159(c)(2) and(e). 2. Obtain a retrospective opinion to determine the functional impairment on the Veteran’s occupational functioning as a result of his PTSD from March 29, 1999, through December 5, 2011. The opinion provider should indicate all symptomatology associated with the Veteran’s PTSD from March 29, 1999, through December 5, 2011, and indicate the impact of such on his social and occupational functioning. The opinion provider should also describe the Veteran’s limitations and restrictions due to his PTSD symptoms. A rationale for all opinions is to be provided. Marjorie A. Auer Veterans Law Judge Board of Veterans’ Appeals Steven D. Reiss Veterans Law Judge Board of Veterans’ Appeals James L. March Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.