Citation Nr: 21013780 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-01 435 DATE: March 10, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent from October 15, 2013, and a rating in excess of 70 percent from June 6, 2019, for service-connected posttraumatic stress disorder (previously rated as unspecified insomnia disorder), is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 2004 until his honorable discharge in April 2012. The Board of Veterans’ Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that established service connection for an unspecified insomnia disorder and assigned an initial 10 percent rating effective November 14, 2013. A subsequent November 2014 rating decision granted an earlier effective date for the award of service connection effective October 15, 2013. For the reasons discussed below, the Board finds there was not substantial compliance with the October 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although further delay is regrettable, the Board finds a remand is necessary to ensure due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to an initial rating in excess of 10 percent from October 15, 2013, and in excess of 70 percent from June 6, 2019, for service-connected posttraumatic stress disorder (PTSD) (previously rated as unspecified insomnia disorder), is remanded. Under VA regulation, a Supplemental Statement of the Case (SSOC) is a document prepared by the Agency of Original Jurisdiction (AOJ) to inform the appellant of any material changes in, or additions to, the information included in the Supplemental Statement of the Case (SOC) or any prior SSOC. 38 C.F.R. § 19.31(a). The AOJ will issue a SSOC if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect. 38 C.F.R. § 19.31(c). That is, when a case is remanded by the Board, the AOJ will complete the additional development of the evidence or procedural development required. 38 C.F.R. § 19.38. Following completion of the development, the case will be reviewed by the AOJ to determine whether the additional development, together with the evidence previously of record, supports the allowance of all benefits sought on appeal. Id. If so, the appellant and his or her representative, if any, will be promptly informed. Id. However, if any benefits sought on appeal remain denied following this review, the AOJ will issue a SSOC concerning the additional development pertaining to those issues in accordance with the provisions of § 19.31. Following the 30-day period allowed for a response to the SSOC pursuant to § 19.52(c), the case will be returned to the Board for further appellant processing. Id. In the present case, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder (PTSD) (previously rated as unspecified insomnia disorder) for additional development by the AOJ. This additional development included scheduling the Veteran for an examination to determine the current level of severity of his service-connected disability. The AOJ secured a QTC Initial PTSD examination in May 2019. The AOJ subsequently issued an August 2020 rating decision in which it granted an increase of the Veteran’s PTSD (previously rated as unspecified insomnia disorder) from 10 percent disabling, to 70 percent disabling effective June 6, 2019, and deferred entitlement to a total disability due to individual unemployability (TDIU). In September 2020, the AOJ issued a SSOC adjudicating entitlement to a TDIU. However, the SSOC did not address the issue of an initial rating in excess of 10 percent from October 15, 2013, to June 5, 2019, and a rating in excess of 70 percent from June 6, 2019, for the service-connected PTSD. The record does not indicate the Veteran has notified VA he is satisfied with the ratings assigned for his service-connected PTSD. As such, the August 2020 rating decision did not constitute a full grant of the benefits sought on appeal. Therefore, the Board finds remand is required for the AOJ to issue a SSOC addressing the claim for an increased rating for PTSD (previously rated as unspecified insomnia disorder). See 38 C.F.R. §§ 19.31, 19.38; see also Stegall, 11 Vet. App. at 271. 2. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board finds the issue of entitlement to a TDIU is part and parcel of the Veteran’s claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as the issue on appeal is being remanded, consideration of the Veteran’s claim of entitlement to a TDIU, at this juncture, would be premature as the issue of TDIU is inextricably intertwined with the remanded issue on appeal. Accordingly, the Board will defer TDIU adjudication. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As an initial matter, the Veteran is currently service-connected for (1) sprain of the lumbar spine as 20 percent disabling, (2) residual left ankle strain with Achilles tendinitis as 10 percent disabling, (3) calcaneal spur of the left foot as 10 percent disabling, (4) tinnitus as 10 percent disabling, and (5) PTSD (previously rated as unspecified insomnia disorder) as 10 percent disabling from October 15, 2013 to June 5, 2019, and as 70 percent disabling from June 6, 2019 to the present. The Veteran’s combined overall disability rating is 40 percent disabling from April 2, 2012, as 50 percent disabling from October 15, 2013, and as 80 percent disabling from June 6, 2019. It is the established policy of VA that Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the Veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to brin the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Additionally, Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). Turning to the available evidence of unemployability, the evidence suggests the Veteran’s service-connected disabilities may have rendered him unemployable. For example, Lebanon VA Medical Center (VAMC) records, the July 2018 VA Back (Thoracolumbar Spine) Conditions exam, and the May 2019 QTC Initial PTSD exam, each indicate the Veteran’s service-connected disabilities have some impact on the Veteran’s ability to work. Although the AOJ mailed the Veteran an appropriate notice regarding how to substantiate a claim for entitlement to a TDIU with the necessary enclosure, VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he has not returned the completed form. This form is required so the Board can assess the occupational and educational history of the Veteran. There is no evidence that the AOJ undertook additional efforts to contact the Veteran, nor that additional forms have been sent for the Veteran to complete. Therefore, the Veteran’s claim for entitlement to a TDIU is remanded for additional development. On remand, he should be provided another opportunity to submit the VA Form 21-8940, and any information in support of the claim for a TDIU. The Board notes under governing regulation the Veteran has a year to submit the evidence and information requested (or indicate that he does not intend to do so). The Veteran is reminded that VA’s duty to assist him in substantiating his appealed issue is not a one-way street, and thus, he is encouraged to cooperate with the AOJ’s efforts to obtain a completed VA Form 21-8940. The matters are REMANDED for the following action: 1. The AOJ should consider all of the evidence of record and adjudicate the issue of entitlement to an initial rating in excess of 10 percent from October 15, 2013, and in excess of 70 percent June 6, 2019, for the service-connected PTSD. 2. Contact the Veteran and verify the Veteran’s current mailing address. The AOJ must provide the Veteran with appropriate notice regarding how to substantiate his claim for entitlement to a TDIU and request that he submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Thereafter, the AOJ must undertake any development necessary to properly readjudicate the Veteran’s claim for a TDIU to include: verifying the Veteran’s level of education, verifying the Veteran’s work history, obtaining any necessary contemporaneous or retrospective medical examinations or opinions, and referring the Veteran’s claim to VA’s Director of the Compensation Service for appropriate action as per 38 C.F.R. § 4.16(b) for any period since October 2013, where the evidence demonstrates the Veteran’s service connected disabilities impacted his employability, and yet, his schedular evaluation does not meet the criteria of 38 C.F.R. § 4.16(a). 4. Thereafter, the AOJ must readjudicate the Veteran’s TDIU appeal based on the entirety of the record. 5. If the benefits sought are not granted, the Veteran should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace A. Johnk, Associate 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.