Citation Nr: 21070234 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-35 393 DATE: November 23, 2021 ORDER On and after March 27, 2019, entitlement to a total disability rating due to individual unemployability (TDIU), based on the service-connected posttraumatic stress disorder (PTSD) disability, is DENIED. REMANDED On and after March 27, 2019, entitlement to a TDIU, based on the Veteran's service-connected disabilities (aside from PTSD), is REMANDED. On and after March 27, 2019, entitlement to special monthly compensation (SMC) is REMANDED. Prior to March 27, 2019, entitlement to a TDIU rating is REMANDED. FINDING OF FACT On May 15, 2019, the agency of original jurisdiction (AOJ) increased the disability rating for the service-connected posttraumatic stress disorder (PTSD) disability to 100 percent, effective March 27, 2019. CONCLUSION OF LAW On and after March 27, 2019, the claim for TDIU, based on the service-connected PTSD disability, is moot. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16(a), 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from January 2010 to July 2014. 1. On and after March 27, 2019, entitlement to a total disability rating due to individual unemployability (TDIU), based on the service-connected posttraumatic disorder (PTSD), is moot. In November 2018, the Board addressed the Veteran's claim for an increased rating for the service-connected posttraumatic stress disorder (PTSD) disability. At that time, the Board found the claim for a TDIU was raised by the appellate record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) On March 27, 2019, the Veteran underwent a VA examination that addressed the current severity of the service-connected PTSD disability. At that time, the Veteran reported that he worked a lot of odd jobs. The Veteran relayed that, "I can't hold a normal job, I tried to drive for uber and I pulled a gun on somebody, so I quit driving for uber as i was afraid I might hurt someone. . .." The examiner opined that the Veteran's service-connected acquired psychiatric disability resulted in total occupational and social impairment. Among the Veteran's identified acquired psychiatric symptoms, the examiner noted a difficulty in establishing and maintaining effective work and social relationships AND a difficulty in adapting to stressful circumstances, including work or a work like setting. In May 2019, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ increased the disability rating for the Veteran's service-connected PTSD to 100 percent, effective March 27, 2019. The Board observes that the Veteran is currently rated at 100 percent for the service-connected PTSD disability on and after March 27, 2019. Therefore, a TDIU based on PTSD is moot during this claim period, on and after March 27, 2019. The Board concludes that the AOJ-assigned, 100 percent schedular rating does, in fact, moot the TDIU claim, resulting from the PTSD disability on and after March 27, 2019. Consequently, to the extent the TDIU claim encompasses the time period on and after March 27, 2019, during which the Veteran was already awarded a 100 percent schedular rating for the service-connected PTSD disability, the claim is moot. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay, and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. 2. On and after March 27, 2019, entitlement to a total disability rating due to individual unemployability (TDIU), based on the Veteran's service-connected disabilities (aside from PTSD), is remanded. 3. On and after March 27, 2019, entitlement to special monthly compensation (SMC) is remanded. In November 2018, the Board addressed the Veteran's claim for an increased rating for the service-connected posttraumatic stress disorder (PTSD) disability. At that time, the Board found the claim for a TDIU was raised by the appellate record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) In April 2021, VA examination reports were generated for the Veteran's service-connected right shoulder, lumbar, cervical, right ankle, deviated septum, and headache disabilities. In each report, the examiner relayed that, "a review of the Veteran's available medical records does not provide any documentation or information about functional impairments associated with the Veteran's . . . , additionally, I have never examined this patient. Hence providing an opinion on the functional impairment associated with the Veteran's . . . would be mere speculation, as there is no available information for me to base my opinion on." The Board now finds that the April 2021 VA examination reports are not adequate for the Veteran's claims for entitlement to TDIU and SMC, on and after March 27, 2019. The Board notes that, if the Veteran's service-connected disabilities (right shoulder; lumbar, cervical, right ankle, deviated septum, and headaches) either alone or in combination with each other (without consideration of the service-connected PTSD) would render him unemployable, then a TDIU based on these service-connected disabilities would be warranted. If so, a 100 percent rating based on TDIU, and a 100 percent rating based on his PTSD, could warrant entitlement to special monthly compensation (SMC). Consequently, on remand, the AOJ must secure a VA examination report(s) that address the impact of the Veteran's service connected disabilities (aside from PTSD) on his ability to secure and maintain substantially gainful employment, on and after March 27, 2019. 4. Prior to March 27, 2019, entitlement to a TDIU rating is remanded. In December 2020, the Board addressed the claim for a TDIU rating prior to March 27, 2019. At that time, the Board noted that pertinent disability benefit questionnaires (DBQs) and VA reports had been generated during the appellate period, prior to March 27, 2019. The Board observed that the DBQs and VA reports did not address the combined effect of the service-connected disabilities on the Veteran's ability to obtain and maintain substantially gainful employment. See Floore v. Shinseki, 26 Vet. App. 376, 382 (2013). The Board remanded the claim to the AOJ in order to secure a VA examination report that addressed the combined effect of the Veteran's service-connected disabilities on the ability to obtain and maintain substantially gainful employment during the claim period, prior to March 27, 2019. During this claim period, the Board observes that the Veteran is service connected for PTSD, right shoulder, lumbar, cervical, right ankle, deviated septum, and headache disabilities. In April 2021, VA examination reports were generated for the Veteran's service-connected right shoulder, lumbar, cervical, right ankle, deviated septum, and headache disabilities. In each report, the examiner relayed that, "a review of the Veteran's available medical records does not provide any documentation or information about functional impairments associated with the Veteran's . . . , additionally, I have never examined this patient. Hence providing an opinion on the functional impairment associated with the Veteran's . . . would be mere speculation, as there is no available information for me to base my opinion on." Ultimately, the Board concludes that the April 2021 examiner's opinion(s) are not adequate for this analysis. Consequently, on remand, the AOJ must secure an examination report, from a different qualified examiner, that evaluates and addresses the combined effect of the Veteran's service-connected disabilities on the ability to obtain and maintain substantially gainful employment. Additionally, the Board notes that the claims file contains information about the Veteran's service-connected disabilities during the claim period. On remand, the reporting examiner must review the information in the claims file and opine on the individual and/or combined effect of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment for the claim period, prior to March 27, 2019. Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action(s): 1. The AOJ should develop these TDIU claims as necessary. The AOJ should again supply the Veteran the forms needed for development of his TDIU claims, i.e., VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information). The AOJ must inform the Veteran that the VA Forms are necessary for development of the TDIU claims for the period prior to March 27, 2019 AND the period after March 27, 2019. 2. Thereafter, the AOJ should schedule the Veteran's claims for an examination(s) with appropriate medical provider(s) to ascertain the impact that the Veteran's service connected disabilities would have in his ability to obtain or maintain gainful employment. The examiner is requested to respond to the following: a. Discuss the impact and functional limitations that the Veteran's service-connected disabilities (PTSD, right shoulder sprain, lumbar strain, cervical strain, right ankle strain, deviated nasal septum, and tension headaches) would have in an occupational setting during the period prior to March 27, 2019. b. Discuss the impact and functional limitations that the Veteran's service-connected disabilities (right shoulder sprain, lumbar strain, cervical strain, right ankle strain, deviated nasal septum, and tension headaches) would have in an occupational setting during the period from March 27, 2019. The examiner should not consider the Veteran's service connected PTSD during this period. In rendering the requested opinions, the examiner should consider the functional limitations in an occupational setting both individually and in combination with each other. The examiner must review the entire claims folder, and such review must be noted in the examination report. The examiner must provide a complete rationale for any opinion given. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. 3. The AOJ must ensure that the examination reports requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for a TDIU rating before March 27, 2019 AND after March 27, 2019. If the benefits sought are not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond before the claims are returned to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.