Citation Nr: 21000625 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-46 802 DATE: January 5, 2021 REMANDED Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to a disability rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to an effective date earlier than September 14, 2017, for the assignment of a 70 percent rating for the service-connected PTSD is remanded. REASONS FOR REMAND The Veteran had active service from September 2001 to November 2008. In July 2019, the Board of Veterans’ Appeals (Board) issued a decision denying the issues of entitlement to a disability rating in excess of 70 percent for the service-connected PTSD and entitlement to an effective date earlier than September 14, 2017, for the assignment of a 70 percent rating for the service-connected PTSD. In the same decision, the Board found that the issue of entitlement to a TDIU was not raised in this case. The Veteran appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a July 2020 Order granting a Joint Motion for Remand (JMR) submitted on behalf of the Veteran and VA. The JMR motioned for the Court to remand the July 2019 Board decision in order for the Board to provide an adequate statement of reasons or bases addressing whether the issue of entitlement to a TDIU was reasonably raised by the record. Specifically, it called for the Board to address whether the Veteran’s workplace accommodations were commensurate to being marginally employed as a result of a sheltered or protected workplace environment. Further, it stated that the issues of entitlement to an earlier effective date for the 70 percent rating and for a rating in excess of 70 percent for PTSD were inextricably intertwined with the TDIU issue. Therefore, remand of those issues was needed, as well. Entitlement to a TDIU A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the Board finds that, in light of the Veteran’s contentions that his workplace accommodations due to his service-connected disability render him marginally employed as a result of a sheltered or protected work environment, the issue of entitlement to a TDIU is raised by the record, is part and parcel of the higher rating claim on appeal, and is thus properly before the Board. The Veteran has not yet completed a VA Form 21-8940 (Application for TDIU) for the period on appeal, and details regarding his employment during the appeal period are unclear. On remand, he should be asked to complete the appropriate application for a TDIU and provide related employment details. Then, all necessary development must be undertaken regarding the TDIU issue. Entitlement to a disability rating in excess of 70 percent for the service-connected PTSD Entitlement to an effective date earlier than September 14, 2017, for the assignment of a 70 percent rating for the service-connected PTSD Because the Court granted the JMR wherein the parties agreed that the issues of entitlement to an earlier effective date for the grant of a 70 percent rating for the service-connected PTSD and entitlement to a rating in excess of 70 percent for PTSD were inextricably intertwined with the issue of entitlement to a TDIU, the Board finds that these issues must be remanded as well. Finally, the Board also notes that the Veteran was last examined by VA in October 2017, over three years ago, for his service-connected PTSD. Accordingly, on remand, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of this disability—and for an opinion to be rendered as to the effect of this disability on the Veteran’s employability. Accordingly, these matters are REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. All appropriate action should then be taken on his TDIU claim. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s PTSD and report all signs and symptoms associated with this disability. In addressing the effect of the Veteran’s service-connected PTSD on his occupational ability, the examiner should: a. obtain from the interview with the Veteran and from a review of his claims folder information regarding his workplace accommodations and b. opine as to whether the Veteran’s documented workplace accommodations are commensurate with his being marginally employed as a result of sheltered or protected work environment. In other words, have the conditions of the Veteran’s employment been adjusted to have resulted in such a sheltered or protected environment that his employment has essentially been rendered marginal? A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and (CONTINUED ON NEXT PAGE) argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.