Citation Nr: 21001241 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-27 968 DATE: January 7, 2021 REMANDED Entitlement to a rating in excess of 70 percent for post-traumatic stress (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to March 1971 in the United States Army. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. See Hearing Transcript (November 2018). In May 2019 and in April 2020, the Board remanded the Veteran’s claims. 1. Entitlement to a rating in excess of 70 percent for PTSD is remanded. To ensure that VA has met its duty to assist, remand is again necessary to obtain a new VA examination. In May 2019 and again in April 2020, the Board remanded the appeal so that the Veteran could be afforded a VA examination to assess his PTSD symptomatology and to provide opinion as to any effects of the symptoms on his social and occupational functioning. Although the requested examinations were obtained, there has not been substantial compliance with the remand directives; as such, remand is again required. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). The April 2020 Board remand found the June 2019 VA examination inadequate, because it did not reflect any indication or meaningful discussion of the severity, frequency, and duration of the listed symptoms other than his panic attacks despite its May 2019 directives to elicit information regarding the severity, frequency, and duration of PTSD symptoms. The Board explained that (1) although not listed as symptoms, the report showed under the heading of “PTSD Diagnostic Criteria,” that the Veteran has alterations in cognition (e.g. inability to remember things) that occurs “more than 1 month,” and (2) under the same heading, the report showed symptoms of irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, and sleep disturbance without any indication of the frequency, duration, or frequency. While another VA examination was obtained in July 2020, it again does not comply with the Board’s remand directives and is inadequate for rating purposes. See Stegall at 268 (1998). First, there are numerous incongruities within the July 2002 VA PTSD examination report. Under the header of “4. Symptoms,” the report lists only anxiety, which is incongruous with the information contained under the header of “3 PTSD Diagnostic Criteria.” Next, the examination does not make it clear whether the Veteran’s PTSD symptoms listed in his June 2019 VA examination report (e.g. panic attacks that occur weekly or less often; chronic sleep impairment; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances including work and work-like setting) had resolved. Further, although these symptoms were not listed as symptoms of his PTSD under “4. Symptoms,” the examination report indicates elsewhere that: (1) “There has not been a significant change in function since prior exam,” and (2) “the Veteran's irritability associated with his diagnosis of PTSD resulted in significant functional impairment in an occupational setting. The symptom of irritability was not a listed symptom under “4. Symptoms.” Second, despite the April 2020 Board remand directive, the examination again does not reflect any indication or meaningful discussion of the severity, frequency, and duration of the one identified symptom of PTSD – anxiety. Third, although directed by the Board’s prior remand, and acknowledged in the examination report, the report of examination did not elicit from the Veteran his complete educational, vocational, and employment history, or note his specific complaints regarding the impact of his PTSD on employment. Instead, PTSD examination report indicated that the “Veteran did not turn in VA Form 21-8940 for TDIU.” Additionally, the report shows that the Veteran reported he was retired. See C&P at 2 (July 2020). But then, it also shows that he had “incidents of exploding on the job which led to terminations” and he had not worked since 2006, noting that “the Veteran's irritability associated with his diagnosis of PTSD resulted in significant functional impairment in an occupational setting.” Fourth, the July 2020 VA PTSD examination reflect that the Veteran’s PTSD symptoms were productive of “Occupational and social impairment with reduced reliability and productivity.” This is incongruous with the finding that “the Veteran's irritability associated with his diagnosis of PTSD resulted in significant functional impairment in an occupational setting.” Given the above, remand is necessary to ensure that VA has met its duty to assist. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination it must provide one that is adequate for purposes of the determination being made.). 2. Entitlement to a TDIU is remanded. The matter of TDIU is inextricably intertwined with the claim for increase. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). As remand is necessary, the Veteran should be afforded another opportunity to complete VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). The Veteran is again reminded that VA’s duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in determining entitlement to the benefit sought. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form (VA Form 21-8940) and ensure that he receives appropriate notice of how to substantiate a claim of entitlement to a TDIU. 2. Obtain the Veteran’s VA treatment records for the period from June 2020 to the Present. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. For TDIU purposes, the examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his PTSD on employment. The examiner should identify all limitations or functional impairment caused solely by PTSD. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.