Citation Nr: 21000846 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-11 838 DATE: January 6, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from June 1968 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Veteran testified at a Travel Board hearing before one of the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This issue was previously before the Board in February 2015 (when it was remanded) and in August 2017 when the Board denied the Veteran’s claim. The Veteran appealed the Board’s denial to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2018 Order, the Court vacated the Board’s decision with regard to the above issue and remanded it for further development pursuant to a Joint Motion for Partial Remand (JMR). Thereafter, the Board remanded the claim in December 2018 for further development consistent with the April 2018 JMR. In October 2020, the Veteran testified before the Board at a hearing held by another undersigned VLJ. A transcript of the hearing is of record. The Veteran was informed at the October 2020 hearing that all judges who participate in a Veteran’s hearings are required to participate in the decision, and therefore, the issue would be decided by a panel and that he had the right to provide testimony before the third member of the panel. 38 C.F.R. § 20.706; Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). On the record at the October 2020 hearing, the Veteran waived his right to a hearing before a third member of the Board. Entitlement to TDIU is remanded. The Board finds that the claim must be remanded for additional development as there has not been substantial compliance with the mandates of the December 2018 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). In December 2018, the Board remanded the claim for a VA examination and to obtain an opinion from a VA Vocational Rehabilitation and Employment (VR&E) officer for an opinion. In the December 2018 Board remand, the Board specifically directed the VR&E officer to “identify (provide examples of) the types of employment that would be inconsistent with the service-connected disability (in light of the Veteran’s education and work experience) and any types of employment that would remain feasible despite the service-connected disability.” In May 2020, a VR&E officer opined in part that: [T]he Veteran’s service-connected disability does present a substantial impairment to employability; presenting limitations with working in any profession that would require exposure to high stress. Veteran should avoid employment duties that present significant stress, pressure, demanding timeframes, dealing with difficult people or issues. Regarding the types of employment that is feasible for the Veteran to perform given his service-connected disability, the VR&E officer opined that the Veteran could: [work] in an office setting perhaps more in an administrative role such as a financial analyst for a bank not working directly with people but rather processing applications, processing files or compiling data perhaps with the IRS or VA. Additionally, given his experience of working with a bank, he could also possibly work as an underwriter or mortgage broker. As the VR&E officer did not provide examples of the types of employment that would be inconsistent with the Veteran’s service-connected disability given his education and work experience, as was specifically requested in the December 2018 Board remand, the Board concludes that the May 2020 opinion does not substantially comply with the December 2018 remand order. Therefore, an additional VA opinion is necessary. See Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from September 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain an addendum opinion from the VR&E officer that provided the May 2020 opinion, if available, or another VR&E officer if the May 2020 VR&E officer is not available. After reviewing the claims file, the VR&E officer should address the following. Provide an opinion regarding the effect the Veteran’s service-connected posttraumatic stress disorder (PTSD) (previously rated as adjustment disorder with mixed anxiety and depression) has on employability, consistent with his education (MBA degree) and occupational experience (work in the financial industry to include on Wall Street, work for an insurance company, and work in a bank), but should NOT consider the Veteran’s age and any nonservice-connected disabilities. The VR&E officer should opine whether the Veteran’s service-connected disability precludes him from participating in any substantially gainful employment consistent with his education and work experience. The VR&E officer should identify (provide specific examples of) the types of jobs that would be inconsistent with the service-connected disability (in light of the Veteran’s education and work experience). In doing so, the VR&E officer should consider the impact of the Veteran’s symptoms of PTSD as reflected in the record, including in private treatment records and opinions, Disability Benefits Questionnaires, VA examinations, and as described at the October 2014 and October 2020 Board hearings. The VR&E officer must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the VR&E officer cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.