Citation Nr: A21020374 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 190703-10663 DATE: December 22, 2021 REMANDED Entitlement to an evaluation in excess of 70 percent from March 1, 2019, for posttraumatic stress disorder (PTSD) with alcohol use disorder and stimulant use disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force (USAF) from March 1974to January 1975. This appeal comes to the Board of Veterans' Appeal (Board) under the Appeals Modernization Act (AMA) review system. See 84 Fed. Reg. 138 (Jan. 18, 2019). Specifically, the appeal comes before the Board from a June 2019 AMA rating decision. In a subsequent July 2019 VA form 10182, Decision Review Request: Board Appeal (AMA Notice of Disagreement), the Veteran elected the Direct Review Lane. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In a January 2020 Board of Veterans' Appeal (Board) decision by a Veterans' Law Judge not the undersigned it denied the appeal. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2021 order, which incorporated the parties September 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the January 2020 Board decision. Entitlement to an evaluation in excess of 70 percent from March 1, 2019, for PTSD with alcohol use disorder and stimulant use disorder is remanded. The JMR vacated and remanded the January 2020 Board decision because, in substance, it found that the following were pre-decisional duty to assist errors as defined by 38 C.F.R. § 20.802(a): Not address in accordance with 38 C.F.R. § 3.156(b) whether the February 2019 increased rating claim, and supporting evidence, constituted new and material evidence affecting the finality of the August 2018 rating decision (see Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011)); and [In this regard, the Board must note for the record that "new and material evidence" standard is not the proper standard for AMA cases. The Board must use the "new and relevant evidence" standard instead. However, the Board must also address the Court's Order, as stated above.] Not seeking clarification from the June 2019 VA examiner as to whether the Veteran's problem with grossly inappropriate behavior when taken together with the frequency and severity of his other adverse symptomatology caused total occupational and social impairment. Given the above, the Board finds that a Remand is required to obtain the clarifying VA opinion and to thereafter have the AOJ again adjudicate the claim considering, among other things, whether the February 2019 increased rating claim, and supporting evidence, constituted new and material evidence affecting the finality of the August 2018 rating decision (see Beraud, supra; Bond, supra). See Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). The appeal is REMANDED for the following actions: 1. To comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his PTSD. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to identify all pathology found to be present. To comply with the JMPR, in providing answers to the above question the examiner is asked to opine as to whether the June 2019 VA examiner's report of grossly inappropriate behavior when taken together with the frequency and severity of the Veteran's other adverse symptomatology results in total occupational and social impairment. Indications of exaggeration by the Veteran, if any, should be noted for the record. In providing answers to the above questions the examiner should specifically consider the competent lay claims from the Veteran regarding observable adverse symptomatology. In providing answers to the above questions the examiner should specifically consider the post-service medical records. In providing answers to the above questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. To comply with the JMPR, the AOJ after undertaking the above development should again adjudicate the claim considering, among other things, whether the February 2019 increased rating claim, and supporting evidence, constituted new and material evidence affecting the finality of the August 2018 rating decision (see Beraud, supra; Bond, supra) and the results from the above VA examination. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.