Citation Nr: 21000343 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 08-09 888A DATE: January 5, 2021 REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to January 15, 2011, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 15, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2006 by a Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 50 percent for PTSD. In April 2010, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the record. A June 2016 letter notified the Veteran that the Veterans Law Judge who conducted the April 2010 hearing is no longer employed at the Board and afforded him an opportunity for an additional hearing. In a July 2016 response, the Veteran indicated that he does not want another Board hearing. In December 2010, the Board remanded the claim of entitlement to an increased rating for PTSD for additional development and, while on remand, a 70 percent rating was granted, effective January 15, 2011. In an April 2012 decision, the Board denied a rating in excess of 50 percent prior to January 15, 2011, and in excess of 70 percent thereafter for PTSD. The Veteran subsequently appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court granted the Veteran’s and the Secretary of VA’s (the parties’) Joint Motion for Remand (JMR), which vacated and remanded the Board’s April 2012 decision as to such issue. In an August 2013 decision, the Board again denied the Veteran’s claim for increased ratings for PTSD and he again appealed to the Court. In May 2014, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s August 2013 decision to the extent that it denied a rating in excess of 50 percent prior to January 15, 2011. In November 2014, the Board assumed jurisdiction over the claim of entitlement to a TDIU prior to January 15, 2011, and remanded both claims for additional development. In a September 2016 decision, the Board granted a 70 percent rating, but no higher, for PTSD for the appeal period prior to January 15, 2011, and denied a TDIU prior to such date. The Veteran appealed such decision to the Court and, in November 2017, the Court granted a JMPR, which vacated and remanded the Board’s decision to the extent that denied a rating in excess of 70 percent for PTSD prior to January 15, 2011 and entitlement to a TDIU prior to January 15, 2011. In September 2018, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to a rating in excess of 70 percent for PTSD prior to January 15, 2011. As relevant, in November 2014, the Board found that a remand was necessary in order to obtain a retrospective opinion addressing the nature and severity of the Veteran’s PTSD for the appeal period stemming from his December 15, 2004, claim to January 15, 2011. Specifically, the Board directed that a VA examiner, preferably a psychiatrist, determine the nature and severity of social and occupational impairment experienced by the Veteran due to PTSD prior to January 15, 2011. The Board requested that the examiner provide a retrospective opinion that: (i) determined all manifestations associated with the Veteran’s PTSD prior to January 15, 2011, and commented on the severity; and (ii) specifically addressed the degree of social and occupational impairment caused by his PTSD from 2005 to January 15, 2011. In doing so, it was requested that the examiner discuss (i) the findings noted in the August 2006 VA examination report; (ii) the Veteran’s August 2010 Board hearing testimony (noting panic attacks, thoughts of suicide, legal problems, anger, feelings of persecution, etc.); (iii) the frequency, severity, and duration of the Veteran’s nightmares, insomnia, anger, and homicidal ideation for the time period prior to January 2011; and (iv) the length of any remissions, as well as the Veteran’s capacity for adjustment during periods of remission. Additionally, the Board requested that the examiner provide an opinion concerning the impact of the Veteran’s service-connected PTSD on his ability to work prior to January 15, 2011, to include the functional impairment caused by the service-connected PTSD, given his education and employment history. Thereafter, an opinion was rendered in February 2015 and the Board denied a rating in excess of 70 percent for PTSD and entitlement to a TDIU prior to January 15, 2011, in the September 2016 decision; however, in the November 2017 JMPR, the parties agreed that such opinion did not substantially comply with the November 2014 Remand directives. Specifically, the parties found that such opinion did not discuss the August 2006 VA examination report or the April 2010 Board hearing testimony, and did not address the Veteran’s capacity for adjustment or the frequency, severity, and duration of his PTSD symptoms from 2005 to 2011 as instructed. The parties also noted that the November 2014 Remand directed that the opinion should preferably be offered by a psychiatrist, and the February 2015 medical opinion appeared to have been rendered by a primary care physician. Thus, in September 2018, the Board again remanded the case to obtain a retrospective opinion from a board-certified psychiatrist that substantially complied with the November 2014 Remand directives. Thereafter, the Veteran underwent a VA PTSD examination in January 2020 that assessed the current nature and severity of such disability, and a retrospective opinion was offered in June 2020. However, as the June 2020 opinion does not substantially comply with the Board’s remand directives, another remand is necessary to obtain such opinion. Stegall v. West, 11 Vet. App. 268 (1998). First, the June 2020 opinion was provided by the supervisor of Compensation and Pension, but her medical specialty was not noted. Thus, it is unclear whether she is a board-certified psychiatrist as is required by the prior remand directives. Additionally, while she discussed the nature and severity of some of the manifestations of the Veteran’s PTSD prior to January 15, 2011, she did not address all of the Board’s inquiries, to include assessing the degree of social and occupational impairment caused by such disability from 2005 to January 15, 2011. Likewise, although the examiner cited to the August 2006 VA examination and April 2010 Board hearing, she did not discuss the findings or testimony contained therein. She also did not discuss the frequency, severity, and duration of the Veteran’s nightmares, insomnia, and homicidal ideation for the period prior to January 2011, or the presence or length of any remissions, or his capacity for adjustment during periods of remission. Finally, the examiner did not provide an opinion concerning the impact of the Veteran’s service-connected PTSD on his ability to work prior to January 15, 2011, to include the functional impairment caused by the service-connected PTSD, given his education and employment background. As such, the Board finds that another remand is necessary in order to obtain a retrospective opinion from a board-certified psychiatrist that substantially complies with the Board’s prior remand directives. 2. Entitlement to a TDIU prior to January 15, 2011. As the Veteran’s claim for TDIU prior to January 15, 2011, is inextricably intertwined with his claim for an increased rating for PTSD for the same time period and the development ordered on remand will generate evidence pertinent to the TDIU claim, it would be premature for the Board to decide the claim for TDIU at this time. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, adjudication of the Veteran’s TDIU claim must be deferred pending resolution of his increased rating claim. Accordingly, the case is REMANDED for the following action: Forward the record, to include a copy of this Remand, to a board-certified psychiatrist for a retrospective opinion addressing the nature and severity of the Veteran’s PTSD for the period from December 15, 2004, to January 15, 2011. Following a review of the record, the examiner is requested to provide a retrospective medical opinion that: (i) determines all manifestations associated with the Veteran’s PTSD prior to January 15, 2011, and comments on the severity of such manifestations; and (ii) specifically addresses the degree of social and occupational impairment caused by his PTSD from December 15, 2004, to January 15, 2011, to include whether such disability results in total social and occupational impairment at any point during such period. In doing so, the examiner must discuss: (i) the findings noted in the August 2006 VA examination report; (ii) the Veteran’s April 2010 Board hearing testimony (noting panic attacks, thoughts of suicide, legal problems, anger, feelings of persecution, etc.); (iii) the frequency, severity, and duration of the Veteran’s nightmares, insomnia, anger, and homicidal ideation for the time period prior to January 2011; and (iv) the presence and length of any remissions, as well as the Veteran’s capacity for adjustment during periods of remission. The examiner is advised that merely citing to the August 2006 VA examination and/or the April 2010 Board hearing will not be sufficient to fulfill this directive. Additionally, the examiner must provide an opinion concerning the impact of the Veteran’s service-connected PTSD on his ability to work during the period from December 15, 2004, to January 15, 2011, to include the functional impairment caused by the service-connected PTSD, given his education and employment history. The rationale for any opinion offered should be provided. A. JAEGER 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.