Citation Nr: 21061491 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-02 677 DATE: October 4, 2021 REMANDED Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), other specified depressive disorder, and alcohol use disorder prior to April 20, 2016 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2001 to August 2006. The Department of Veterans Affairs (VA) is grateful for his service. By an April 2020 decision, the Board granted a 50 percent initial rating prior to April 20, 2016 for PTSD, other specified depressive disorder, and alcohol use disorder, denied an initial rating above 70 percent for PTSD, other specified depressive disorder, and alcohol use disorder effective April 20, 2016, and denied TDIU. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in April 2021 the Court approved a Joint Motion for Remand (Joint Motion) which vacated the Board's April 2020 decision with respect to the denial of a rating above 50 percent for PTSD, other specified depressive disorder, and alcohol use disorder prior to April 20, 2016, and its denial of TDIU. The Joint Motion left undisturbed the Board's denial of a higher initial rating than 70 percent for PTSD, other specified depressive disorder, and alcohol use disorder effective April 20, 2016. The case thus returns to the Board from the Court for action consistent with the Joint Motion. By a separate remand in September 202, the Board addressed appealed claims for service connection for medically unexplained chronic multisystem illness, bilateral hearing loss, sleep apnea, and a migraine condition. They have not been returned to the Board for appellate consideration. 1. Entitlement to an initial disability rating in excess of 50 percent for PTSD, other specified depressive disorder, and alcohol use disorder prior to April 20, 2016 is remanded. 2. Entitlement to a TDIU is remanded. Recent VA treatment and examination records identify psychiatric disabilities including PTSD, depression, attention deficit disorder (ADD), and alcohol use disorder in full sustained remission. Examiners have stated that symptoms of these conditions overlap and cannot be differentiated. Reviewing recent examination records, the Board notes that at a May 2021 VA hearing loss examination for compensation purposes the examiner observed several notable findings: air and bone conduction thresholds were inconsistent, with bone conduction thresholds significantly poorer than air conduction thresholds; speech reception was inconsistent with pure tone thresholds with the Veteran showing speech reception at lower decibel levels than he indicated he could hear pure tones; and a Stenger test, which indicates false reporting of hearing findings, was positive. The examiner stated, "These findings may indicate poor validity of evaluation with possible non-organic properties." On the basis of these examination findings, the Board concludes that validity testing is warranted to assess the Veteran's service-connected psychiatric disability. The parties to the Joint Motion called attention to several records in the course of the claim in which the Veteran expressed either suicidal ideation or suicidal ideation with intent or plan, as well as an instance of reported near-attempt. On this basis, the parties to the Joint Motion required that the Board adequately address questions of suicidal ideation as an aspect of the Veteran's psychiatric disability when considering the severity of disability. Because it does not appear that VA examiners addressed suicidal ideation to a greater extent than the Board addressed suicidal ideation in its April 2020 decision, the Board is compelled by the Joint Motion to obtain a new, retrospective examination to address the impact on the Veteran's function of any suicidal ideation over the claim period. The parties to the Joint Motion also found that the Board did not adequately support its finding that the Veteran's symptoms did not result in "serious occupation impairment" prior to April 2016. The Joint Motion called attention to the report that the Veteran was only working two to three hours per week at the time of the April 2016 examination. However, the Veteran reported at the April 2016 examination that he currently worked his own schedule with Edward Jones Investments as a branch office specialist. The nature of that position is not further clarified in the examination report, and neither is the Veteran's earnings. Due to these ambiguities and the absence of clarity about the work the Veteran performed on his own schedule for Edward Jones Investments, and an incomplete picture of the Veteran's employment history, the Board concludes that in order to better ascertain the level of function of the Veteran during the claim period, including particularly whether he was substantially gainfully employed during the claim period, actual earnings figures should be requested from the Veteran for each year during the claim period, and an income verification match should be performed. Statements should also be sought from the Veteran's employers over the claim period regarding the Veteran's history of employment, including any difficulties with such employment and the reasons for such difficulties, and any reprimands, disciplinary actions, or termination of employment and reasons for these. The employers should also be asked whether the Veteran has been afforded any accommodations and the reasons for any accommodations, and whether the Veteran worked in a sheltered or non-competitive work environment. In furtherance of the TDIU claim, the Veteran should also be afforded a general medical examination to ascertain the functional impact of each of the Veteran's physical service-connected disabilities on his work capacity, both separately and in their combined effect. The examiner should be required to perform objective testing and scans to ascertain the nature and extent of disability, and to conduct appropriate validity testing rather than relying solely or primarily on self-reported symptoms and impacts of service-connected disabilities. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any unobtained VA and pertinent private treatment records, with the Veteran's assistance and authorization, as appropriate. Notify the Veteran if any records cannot be obtained. 2. Request from the Veteran a report of his total income as well as a breakdown of earnings and other incomes and sources of each, for each year of the claim period. Contact information for each employer should be provided. 3. Obtain an income verification match for the Veteran's income for each year of the claim period. 4. With the Veteran's authorization and assistance, as appropriate, statements should be sought from the Veteran's employers during the claim period addressing the Veteran's history of employment, including any difficulties with such employment and the reasons for such difficulties, and any reprimands, disciplinary actions, or termination of employment and reasons for these. The employers should also be asked whether the Veteran has been afforded any accommodations and the reasons for any accommodations, and whether the Veteran worked in a sheltered or non-competitive work environment. 5. Obtain a new in-person VA psychiatric examination to address the nature and severity of the Veteran's PTSD, depression, ADD, and alcohol use disorder both currently and retrospectively over the claim period. The claims file should be reviewed in conjunction with the examination, and any necessary tests or studies should be performed with relevant findings reported on the examination report. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Psychological testing with validity testing should be conducted, and pertinent results should be reported in detail in the examination report. The examiner should specifically address the nature and extent of the Veteran's PTSD, other specified depressive disorder, and alcohol use disorder both currently and over the course of the claim period, with any indicated intervals of greater or lesser severity, and the impact of these conditions on the Veteran's ability to obtain and retain substantially gainful employment. The examiner should also specifically address the extent of occupational impairment attributable to the Veteran's PTSD, other specified depressive disorder, and alcohol use disorder during the claim period prior to April 20, 2016. The examiner must specifically address whether the Veteran has had suicidal ideation, and if so the extent to which this ideation has impaired the Veteran's functioning, both currently and over the course of the claim period. The examiner should provide a complete explanation, supported by evidence and medical knowledge, for each opinion expressed. 6. Obtain a general medical examination to address the functional impairment/limitation of each of the Veteran's service-connected physical disabilities on his work capacity, both separately and in their combined effect, both currently and retrospectively over the claim period. The claims file should be reviewed in conjunction with the examination, and any necessary tests or studies should be performed with relevant findings reported on the examination report. The examiner should perform objective testing and scans to ascertain the nature and extent of disability. Validity testing should also be conducted, rather than relying solely or primarily on self-reported symptoms and impacts of service-connected disabilities. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should provide a complete explanation, supported by evidence and medical knowledge, for each opinion expressed. 7. Thereafter, readjudicate the claims the subject of this remand. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.