Citation Nr: 21003072 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 10-46 859 DATE: January 19, 2021 REMANDED 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1970 to December 1972. The matter of entitlement to an increased rating for PTSD with depressive disorder is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision, which granted service connection for PTSD with depressive disorder effective April 22, 2011, and assigned “staged” ratings of 30 percent prior to November 2, 2013, and 50 percent from that date. The matter of entitlement to a TDIU rating is before the Board on appeal from an October 2015 rating decision. In January 2016, a videoconference hearing was held before the undersigned; a transcript is associated with the record. A September 2016 Board decision denied an effective date earlier than April 22, 2011, for the grant of service connection for PTSD with depressive disorder, and remanded the claims for higher ratings for PTSD with depressive disorder, TDIU, and special monthly pension (SMP) for further development. [The Veteran appealed the denial of an earlier effective date for the award of service connection for PTSD with depressive disorder to the United States Court of Appeals for Veterans Claims (CAVC). An October 2017 CAVC Memorandum Decision upheld the Board’s denial.] In September 2018, the Board again remanded the matters for additional development. In October 2019, the Board granted an increased (to 50 percent) rating for PTSD with depressive disorder throughout, and denied a rating in excess of 50 percent; denied a TDIU rating; and denied entitlement to SMP based on the need for aid and attendance (A&A) of another by reason of being housebound. The Veteran appealed to the CAVC the portions of the Board decision that denied a rating in excess of 50 percent for PTSD with depressive disorder and that denied a TDIU rating, resulting in a July 2020 Joint Motion for Partial Remand (JMPR) by the parties. [The parties agreed not to disturb the award of the 50 percent rating for PTSD prior to November 2, 2013. The Veteran did not appeal the denial of SMP; the parties requested that the CAVC dismiss the appeal regarding that issue. Accordingly, that matter is no longer before the Board.] An August 2020 CAVC Order remanded the matters for action consistent with the JMPR instructions. 1. Entitlement to a rating in excess of 50 percent for PTSD with depressive disorder In the July 2020 JMPR, the parties agreed that the Board erred by not ensuring compliance with the September 2016 Board remand as required by Stegall v. West, 11 Vet. App. 268 (1998). “The parties agree that remand is required because the July 2017 VA examination does not substantially comply with the terms of the Board’s September 2016 remand. Specifically, although the July 2017 VA examiner listed the criteria associated with a 70 percent rating for PTSD and found [the Veteran] did not have any of the listed symptomatology, the examiner did not comment on the impact of the [Veteran’s] psychiatric symptoms on his occupational and social functioning and identify whether, when, and to what extent the symptoms and functional impairment have worsened during the period on appeal (if such is the case). On remand, the Board shall obtain a new VA examination to address these issues and that complies with the terms of the Board’s September 2016 remand.” Upon re-review of the record, the Board found [contrary to the JMR cited statement] that the July 2017 examiner indeed discussed the impact of the Veteran’s psychiatric disability on employment. The VA psychologist included a nearly 8-page “Social Work and Industrial Survey Report” with her PTSD examination report [which the parties to the JMR apparently did not review]. The final page of that report discusses the Veteran’s employment history and the examiner’s opinions regarding “Effect of Disabilities and Impact on Employment.” The examiner also noted that the prior “remand asks specifically about the worsening of psychiatric symptoms during the period of appeal,” and she provided an opinion regarding consistent symptomatology based on review of treatment records, the current examination, the Veteran’s statements, and the prior VA examination report (competent medical opinion evidence the Board relied on, at least in part, for the increase in the staged rating for PTSD with depressive disorder from 30 percent to 50 percent during the period prior to November 2, 2013). Nevertheless, based on the parties’ agreement in the July 2020 JMPR mandating another examination to ascertain the current severity of the Veteran’s PTSD with depressive disorder and its impact on the Veteran’s social and occupational functioning, the Board has no recourse but to order another examination to ensure compliance with the JMR. If an increase in symptomatology is found, the examiner should (to the extent possible) opine when such worsening occurred (with citation to the clinical evidence that supports such a finding). 2. Entitlement to a TDIU rating In the July 2020 JMPR, the parties agreed that the matter of a TDIU rating is inextricably intertwined with the claim for increase for PTSD with depressive disorder. “The additional development required on remand related to the claim for an increased rating for PTSD may impact the determination regarding [the Veteran’s] entitlement to TDIU.” Appellate consideration of this matter must be deferred pending resolution of the other remanded claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Secure for the record completed updated (any not already associated with the claims file) clinical records of all VA evaluations or treatment the Veteran has received for his psychiatric disability. 2. Confirm that the Veteran’s January 2021 request for a copy of his DD Form 214 received an appropriate response (the record reflects that AOJ action in this matter was initiated, but does not show whether it was completed). If not, provide the copy of the requested document. 3. Thereafter, arrange for the Veteran to be examined an appropriate psychiatrist or psychologist to assess the severity of his service-connected PTSD with depressive disorder. The entire record (to include this remand, and the July 2017 VA PTSD and “Social Work and Industrial Survey” examination reports) should be reviewed by the examiner. The examiner should describe all psychiatric symptoms found (or shown by the record) and discuss their impact on the Veteran’s occupational, social, and daily activity functioning in detail, noting the presence (and frequency/severity) or absence of each symptom in the criteria for 70 percent or higher ratings, and any symptoms of similar gravity found not listed in the schedular criteria. If the disability picture found on examination suggests the Veteran’s PTSD with depressive disorder manifests in occupational and social impairment with deficiencies in most areas (or total impairment), opine (to the extent possible) when such symptomatology first manifested (with citation to the clinical data, as appropriate). Include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.