Citation Nr: 21062228 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-05 849 DATE: October 6, 2021 REMANDED Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) for the time period from June 1, 2011, to July 8, 2016, is remanded. Entitlement to an evaluation in excess of 70 percent for PTSD for the time period from July 8, 2016, to the present is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision. In an October 2016 rating decision, the Veteran was awarded a 70 percent evaluation, effective July 8, 2016, for PTSD. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claim. AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded these matters for additional development in June 2015 and December 2017. In an October 2019 decision, the Board denied the above increased rating and TDIU claims. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion) in September 2020, which was granted by Order of the Court that same month. In May 2021, the Board again remanded this matter for additional development. 1. Entitlement to an evaluation in excess of 50 percent for PTSD for the time period from June 1, 2011, to July 8, 2016, is remanded. 2. Entitlement to an evaluation in excess of 70 percent for PTSD for the time period from July 8, 2016, to the present is remanded. 3. Entitlement to a TDIU is remanded. The Veteran contends generally that he has been unable to secure/follow any form of substantially gainful employment due to his service-connected disabilities. A July 2008 VA Form 21-8940 showed that the Veteran reported that he last worked in retail in 2005, and that unemployability was due to the service-connected PTSD and medication. An October 2011 VA examination report reflected that the Veteran worked as a textile supervisor for 30 years until he was laid off, that he worked as a store manager for four years, and that he quit working in 2009 due to irritability. He has also indicated that he was a pastor for 26 years. The Veteran's service-connected disabilities meet the combined rating requirements of 38 C.F.R. § 4.16(a) for schedular consideration of TDIU. The combined disability rating percentages for all service-connected disabilities is at least 70 percent from June 1, 2011, with at least one disability (PTSD) rated at least 40 percent. The following are his service-connected disabilities: PTSD, diabetes mellitus, right lower extremity diabetic neuropathy, left lower extremity diabetic neuropathy, hearing loss, and tinnitus. In the September 2020 Joint Motion, the Board was instructed to apply the guidance in Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) in addressing whether the Veteran was unable to secure and follow a substantially gainful occupation. In Ray, the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Board notes that VA regulations place responsibility for the ultimate TDIU determination on VA, not on a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. Then, it is the rating official who is responsible for interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. See Moore v. Shinseki, 26 Vet. App. 376, 381 (2013); see also 38 C.F.R. §§ 4.2, 4.10 (2020). Based on the cumulative evidence of record, the Board finds that an additional VA examination to adequately address the effects of the Veteran's service-connected disabilities, alone or in aggregate, on his ability to secure and follow substantially gainful employment consistent with his education and occupational experience during the period from June 2011 to the present is necessary to effectively adjudicate the TDIU claim on appeal. As a decision on the remanded issue of entitlement to a TDIU could significantly impact a decision on the increased rating issues for PTSD, the issues are inextricably intertwined and a remand of the increased rating claims for PTSD is required. Finally, updated VA treatment records from Fayetteville VAMC for the time period from August 2021 to the present should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's service-connected disabilities from Fayetteville VAMC for the time period from August 2021 to the present and associate them with the record. 2. Thereafter, obtain a VA medical examination from an appropriate examiner to determine the full description of the effects of disability upon the Veteran's ordinary activity, to include functional effects of his service-connected disabilities, alone or acting in concert, that might tend to impair his ability to secure and follow substantially gainful employment, consistent with his education and occupational expertise for the time period from June 2011 to the present. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed. The examiner must compile a full work and educational history. This opinion must be provided without consideration of the Veteran's nonservice-connected disabilities or age. To the extent possible, the VA examiner must address the full effects of the functional and industrial impairment due to each of the Veteran's service-connected disabilities (PTSD, diabetes mellitus, bilateral lower extremity diabetic neuropathy, hearing loss, and tinnitus) during the time period from June 2011 to the present. The examiner must furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activities, which include employment. 38 C.F.R. § 4.10 (2020). In doing so, the examiner should fully describe what types of employment activities would be limited because of the service-connected disabilities and what types of employment activities would not be limited (if any). This description may include an opinion on such questions as whether the Veteran's service-connected disabilities precluded standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, performing other specific tasks, etc. The examiner should provide an extensive discussion of the Veteran's physical and mental abilities as well as the effects of any psychological and functional limitations related to his service-connected disabilities in the context of his daily activities, specifically employment, during the time period from June 2011 to the present. The examiner should also discuss and acknowledge the functional impact findings contained in the VA examination reports/medical opinions dated in October 2011, June 2016, July 2016, and August 2021 in conjunction with the proffered medical opinion for this matter. The examiner should also discuss the meaning and significance of the August 2021 VA examiner's findings of ICOR with 3/5 in the relevant occupational and educational history section of the August 2021 VA examination report. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2020). 3. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the August 2021 SSOC. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.