Citation Nr: 21063477 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-43 928 DATE: October 14, 2021 REMANDED Entitlement to a disability evaluation in excess of 30 percent from June 4, 2013, to September 1, 2016, and to a disability evaluation in excess of 50 percent from September 2, 2016, to October 24, 2019, for service-connected posttraumatic stress disorder (PTSD) 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 February 1971 to November 1973. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board previously remanded this matter in March 2019. As a preliminary matter, the Board notes that the RO granted entitlement to a maximum 100 percent disability evaluation for the Veteran's service-connected PTSD effective October 25, 2019. See August 2020 Rating Decision. As this is the highest schedular benefit available, the Board will not address entitlement to an increased rating for service-connected PTSD from October 25, 2019, forward. 1. PTSD In the March 2019 remand, the Board requested not only that a new examination be conducted, but also that the examiner determine the severity of the Veteran's service-connected PTSD throughout the period on appeal, specifically addressing conflicting evidence of record, which included the Veteran's VA medical records, findings by R.L., Ph.D., N.C.C., L.M.H.C. (the Veteran's private provider), and the July 2015 and February 2017 VA examinations. Although an October 2019 examination was performed, the examiner did not provide an opinion addressing the conflicting evidence of record for the period prior to October 2019. A remand confers on claimants, as a matter of law, the right to compliance with remand orders and on the VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Therefore, the Board requests that an addendum retrospective opinion be obtained as to the nature and severity of the Veteran's service-connected PTSD prior to October 25, 2019. Furthermore, the Veteran's VA medical records indicate that he sought treatment from R.L., Ph.D., N.C.C., L.M.H.C. See November 2016 VA Mental Health Outpatient Note. These records have not been associated with the claims file. Consequently, the Board requests that records from R.L., Ph.D., N.C.C., L.M.H.C., be obtained and associated with the claims file. 2. TDIU As previously noted in the March 2019 Board Decision, the issue of entitlement to a TDIU is inextricably intertwined with the increased ratings claim on appeal. See March 2019 Board Decision; Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, because the Board is remanding the issue of entitlement to increased disability evaluations for the Veteran's service-connected PTSD, the Board must also remand the issue of entitlement to a TDIU. The Board also acknowledges that in an August 2020 Supplemental Statement of the Case (SSOC), the RO concluded that due to the Veteran's 100 percent disability evaluation for his service-connected PTSD effective October 25, 2019, the claim after that date is moot. See August 2020 Supplemental Statement of the Case. However, the Board acknowledges that a TDIU claim can be granted despite the existence of a combined schedular total rating for the purpose of establishing entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114(s). In Bradley v. Peake, the Court held that the issue of entitlement to a TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis of an award of SMC. The matters are REMANDED for the following action: 1. The RO should, with the Veteran's authorization, obtain his medical records from R.L., Ph.D, N.C.C., L.M.H.C., from June 4, 2013, to October 24, 2019. The Veteran should also be invited to submit these records himself. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Then, forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to opine as to the nature and severity of the Veteran's service-connected PTSD from June 4, 2013, to October 24, 2019. Based on review of the claims file, the clinician should render an opinion addressing whether, at any point from June 4, 2013, to October 24, 2019, the record reflects any change(s) in the severity of the Veteran's PTSD. In formulating his or her opinion, the clinician must consider and address the Veteran's VA medical records, the Veteran's medical records and statements from R.L., Ph.D., N.C.C., L.M.H.C., and the findings of the July 2015 and February 2017 VA C&P Examinations. To the extent possible, the clinician should explain and/or reconcile any and all conflicting findings. The clinician should also discuss the Veteran's functional limitations due to his service-connected PTSD as it relates to his ability to perform the mental acts required for employment. 3. Then, readjudicate the issues on appeal. If the above-sought benefits remain denied, the RO should issue a SSOC to the Veteran and his representative. An appropriate period of time should be allowed for response before returning the appeal to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.