Citation Nr: 21003691 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-37 616 DATE: January 22, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to December 5, 2018 is remanded. REASONS FOR REMAND The Veteran had active military service from December 1968 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that jurisdiction currently rests with the Phoenix, Arizona RO. This matter has a lengthy procedural history that has been addressed in detail in a prior Board decision that is incorporated herein by reference. Addressing the most relevant procedural history, this matter was previously before the Board in May of 2018 when it was remanded for the issuing of a Statement of the Case and to afford the Veteran the opportunity to perfect a timely appeal. This additional development has been completed and the case has now been returned to the Board for further appellate action. The appeal is again REMANDED to the AOJ. In this case, the Board notes that the Veteran has been in receipt of special monthly compensation under 38 U.S.C. § 1114 (s) in addition to a 100 percent rating for the service-connected coronary artery disease (CAD) with congestive heart failure (CHF) and unstable angina (as his PTSD represents an additional service-connected disability rated at over 60 percent) since December 5, 2018. Thus, the award of a TDIU on or after December 5, 2018 would result in no further benefit to the Veteran. Therefore, the issue of entitlement to a TDIU from December 5, 2018 is rendered moot, and the Board need not consider the issue of entitlement to a TDIU from December 5, 2018. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Accordingly, the Board has recharacterized the issue on appeal as entitlement to a TDIU prior to December 5, 2018. The Veteran asserted on his August 2015 VA Form 21-8940 that he had been precluded from full-time employment since March of 2012 due to his PTSD, hearing loss, and tinnitus conditions. Unfortunately, the Board is unable to determine the collective impact of the Veteran’s then-service-connected disabilities on his ability to maintain gainful employment during the period prior to December 5, 2018. More specifically, there is ambiguity in the evidence of record regarding the Veteran’s service-connected psychiatric condition during this period. In January of 2015, a VA examiner opined, without indicating that the claims file had been reviewed, that the Veteran, “has other mental health problems or symptoms ... that interfere significantly with the ability to work”. He stated that, “Vet does not feel comfortable around people, is restless and jittery at times, feels panicky when in small spaces, is hypervigilant, and has problems with motivation. He has suicidal ideation fairly frequently, flashbacks, and episodes of derealization.” In August of 2016, a VA examiner was asked to comment on the effect of the Veteran’s service connected-disabilities on his or her ability to function in an occupational environment and describe any identified functional limitations in addition to clarifying his new Adjustment Disorder diagnosis. While the examiner failed to provide an opinion regarding functional limitations, the examiner stated that, “On the exam (dated 3/12/2016), Veteran was diagnosed with PTSD and Adjustment Disorder with Depressed Mood. Veteran’s Adjustment Disorder with Depressed Mood, secondary General Medical Condition is a SEPARATE diagnosis, different and unrelated to Veteran’s PTSD. Veteran’s adjustment disorder is not secondary to PTSD; but rather, the Adjustment Disorder is related to his CIPD (related to being sprayed with Agent Orange). The examiner noted on the exam that the conditions, PTSD and ADJUSTMENT DISORDER ARE COMORBID DISORDERS - comorbid meaning co-occurring disorders (disorders that occur at the same time).” The Board notes that the Veteran initially asserted that he was unable to work due to chronic inflammatory demyelinating polyneuropathy (CIDP). See e.g. September 2013 Notice of Disagreement. However, the Veteran is not service-connected for this condition. As such, it should be clarified on remand exactly which of the symptoms that he experienced throughout this period were attributable to his service-connected PTSD as opposed to his non-service-connected Adjustment Disorder (which is apparently related to his non-service-connected CIPD). Based on the foregoing, the Board cannot make a fully-informed decision until an opinion is obtained regarding the combined effect of the Veteran’s then-service-connected disabilities on his ability to maintain gainful employment for the period prior to December 5, 2018 with particular attention on the nature and impact of his service-connected psychiatric condition. The matter is REMANDED for the following actions: 1. Obtain an addendum retrospective opinion from an appropriate clinician for the period prior to December 5, 2018. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. As the opinion and information requested pertains to the prior state/severity of the Veteran’s service-connected conditions, a full examination of the current state of his conditions is unnecessary. However, if necessary to respond to any inquiry below, the Veteran should be scheduled for an interview, either via telephone or in-person, whichever is more convenient, to obtain such information. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should address: (a.) The combined effect of the Veteran’s service-connected disabilities on his ability to engage in any type of full-time employment for the period prior to December 5, 2018. The clinician should elicit and set forth the pertinent facts regarding the Veteran’s medical history, education and employment history, day-to-day functioning, and industrial capacity. He or she should address the Veteran’s ability to function in an occupational environment. The clinician is advised that being unemployed during the period on appeal is not equivalent to being unemployable for VA purposes. Further, the clinician is asked to clarify, to the extent possible, whether the symptoms that the Veteran experienced throughout this period were attributable to his service-connected PTSD as opposed to his non-service-connected Adjustment Disorder (which is apparently related to his non-service-connected CIPD). In responding to these inquiries, any side effects the Veteran experienced from medications for the service-connected disabilities should be considered. If the evidence demonstrates that the Veteran experienced varying levels of impairment at different points during the appeal period, the clinician should so state and provide the basis for such conclusion. The clinician must provide a comprehensive report, including complete rationales for all conclusions reached. If the clinician is unable to provide any of the requested information without resorting to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.