Citation Nr: 20047097 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 11-10 251 DATE: July 14, 2020 REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from December 1, 2011 to September 17, 2014, is remanded. Entitlement to a rating in excess of 30 percent for PTSD since October 15, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2014 and February 2017, the Board remanded the issue for additional development. Additionally, the October 2017 Board decision denied a rating in excess of 30 percent for PTSD from December 1, 2011 to September 17, 2014, and since October 15, 2014. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By an order dated February 2020, the Court granted a Memorandum Decision, vacating the October 2017 Board decision for such issues and remanding the case for compliance with the terms of the Memorandum Decision. The Court also remanded the issue of entitlement to a TDIU for initial development and adjudication as it was reasonable raised by the record. Therefore, the case has been returned to the Board for appellate review. In March 2020, the Board sent the Veteran a letter informing him that the Veteran Law Judge (VLJ) who conducted the September 2011 Board hearing had become unavailable to issue a final decision in his appeal, and, as a result, that he had the right to an additional hearing before another VLJ, who would issue the final decision in his appeal. In April 2020, the Board received a response from the Veteran in which he declined this opportunity. See 38 C.F.R. § 20.707. The Board notes that additional evidence has been received since the February 2020 Court Memorandum Decision. However, on remand, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review the additional evidence. 1. Entitlement to a rating in excess of 30 percent for PTSD from December 1, 2011 to September 17, 2014. 2. Entitlement to a rating in excess of 30 percent for PTSD since October 15, 2014. As an initial matter, the Board notes that the record contains a June 2020 VA examination scheduling request for the Veteran’s PTSD. However, such examination has not been conducted. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the severity of his PTSD. In this regard, he was last examined in April 2017. In this regard, the Veteran’s representative contends that the VA examination was not an adequate reflection of the severity of his PTSD symptoms. Specifically, he maintains that the Veteran’s ongoing psychiatric symptoms of such severity as to cause him occupational and social impairment with deficiencies in most areas. Moreover, the VA treatment records, private treatment records, and SSA records indicated the worsening of his PTSD symptoms. The Veteran also submitted a December 2019 opinion from a private psychologist, Dr. S.H., which should also be reviewed on remand. Therefore, as the evidence suggests that the Veteran’s PTSD may have increased in severity since the April 2017 VA examination, a remand is necessary to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 3. Entitlement to a TDIU. With respect to the issue of entitlement to a TDIU, the Board observes that the assignment of a TDIU depends, in part, upon the assigned ratings for service-connected PTSD throughout the appeal. In this decision, the Board has remanded the claim for entitlement to an increased rating for PTSD, the outcome of which could affect the Veteran’s overall disability rating. Therefore, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with this matter, and, therefore, adjudication of such claim must be deferred. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The record, to include a complete copy of this Remand, must be made available to the examiner, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran’s PTSD since December 1, 2011. The findings of the examiner should address the level of social and occupational impairment attributable to the service-connected disability. The examiner should elicit and set forth the pertinent facts regarding the Veteran’s medical history, education and employment history, day-to-day functioning, and industrial capacity. Additionally, the examiner should indicate if there is any form of employment that the Veteran could perform, and if so, what type. The examiner should also consider the December 2019 opinion from a private psychologist, Dr. S.H. A rationale should be provided for any opinion offered. 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence, to include whether a TDIU on a schedular or extraschedular basis is warranted. If a claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.