Citation Nr: 21013601 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-15 470 DATE: March 9, 2021 REMANDED Entitlement to an initial increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from June 2005 to December 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a November 2018 Board central office hearing. A transcript of the hearing has been associated with the claims file. The claims were previously before the Board in March 2019. An October 2020 order of the United States Court of Appeals for Veterans Claims (Court) implemented an October 2020 Joint Motion for Remand (JMR), vacating and remanding the March 2019 Board decision that denied entitlement to an increased initial rating in excess of 70 percent for PTSD and entitlement to a TDIU. As such the issues of entitlement to an increased initial rating in excess of 70 percent for PTSD and entitlement to a TDIU are again before the Board. 1. Entitlement to an initial increased rating in excess of 70 percent for PTSD. 2. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU) The Veteran contends that an increased rating is warranted for his service connected PTSD. In addition, the Veteran contends that a TDIU is warranted due to his service connected PTSD. In light of the points raised by the parties in the JMR and a Board review of the claims file a remand is warranted for additional development. The October 2020 JMR raised the issue that the Board failed to provide an adequate statement of reasons or bases in addressing relevant evidence as to the severity, frequency and duration of the Veteran’s PTSD symptoms. Specifically, the parties found that the Veteran and ongoing lay statements reported hallucinations, and the potential similarity between flashbacks and hallucinations that was not fully addressed. Further, the parties found that the Veteran’s flashbacks are experienced with such frequency and severity that they could constitute a symptom such as hallucinations under the applicable Diagnostic Code. Further, the parties note the Veteran reported an increased severity of his symptoms including an intermittent inability to perform activities of daily living and increased memory loss. The Board notes that the Veteran was most recently afforded a VA examination in July 2017 as to his PTSD. A review of the claims file and the Veteran’s and associated lay statements suggests a potential worsening of symptoms, and the Board finds an updated VA examination is warranted to fully address the entirety of the Veteran’s symptoms and the severity and frequency of such. The Board also notes that Veteran has reported several suicide attempts during the appeal. A remand is warranted for additional development. Then as to TDIU, the parties to the October 2020 JMR found that the Board failed to provide an adequate statement of reasons or bases in addressing whether TDIU was warranted. Specifically, the JMR has raised the issue that the Veteran may have engaged in marginal employment in a sheltered or protected work environment, the Veteran testified that his prior supervisor gave him leeway as he was also a Veteran. Additional development is warranted to fully address contentions related to marginal employment. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Marginal employment is defined as employment where the Veteran’s annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id.; see also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases where there is employment in a protected environment, such as a family business or sheltered workshop. The Board finds a remand is necessary to determine whether the Veteran has been engaged in substantially gainful employment during the appeal. Additional development is needed to address the Veteran’s period of employment, why he left the respective jobs and if any reasonable accommodations were given by the employer. As such a remand is warranted for additional development and an updated examination. The matters are REMANDED for the following action: 1. The AOJ should provide notice to the Veteran and request he provide additional information as to his periods of employment, noting periods of work, why he left the jobs, earnings at each job, and what if any accommodations were provider by the employers. 2. Request all records of VA outpatient treatment since July 2017 and associate any records received with the claims file. 3. Because the Veteran testified that he at one time sought VA Vocational Rehabilitation (VocRehab) benefits and that he would consider applying for Social Security Administration (SSA) disability benefits, request records of counseling for VA VocRehab and records of examination by the SSA. If they exist, associate any records received with the claims file. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran’s testimony in November 2018 noting ongoing flashbacks and hallucinations. The Veteran and ongoing lay statements reported hallucinations, and the potential similarity between flashbacks and hallucinations should be fully addressed. Further, the examiner should address the contentions that the Veteran’s flashbacks are experienced with such frequency and severity that they could constitute a symptom such as hallucinations under the applicable Diagnostic Code. In addition, attention is invited to the Veteran’s and associated lay statements noting difficulty remembering his own name, increased issues of memory loss, and the Veteran needing ongoing reminders to shower and complete activities of daily living. Further, the Veteran has reported multiple suicide attempts. Additionally, the Veteran reports ongoing increased irritability which has hindered his ability to work. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.