Citation Nr: 21022226 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-21 432 DATE: April 15, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 12, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1979 to November 1982. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge at a September 2018 Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. In April 2019, the Board remanded the case to the AOJ for additional development. In September 2020 the Board again remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence, the Board finds that the AOJ has not adequately conducted additional development as directed, and therefore there has not been sufficient compliance with the remand directives. A remand for further development is necessary. On remand and in a November 2020 rating decision, the AOJ granted entitlement to a TDIU effective from April 12, 2019. The issue remains on appeal for the period prior to that date. 1. Entitlement to a TDIU prior to April 12, 2019 is remanded. The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. In its September 2020 remand, the Board directed that the Veteran complete, and submit, a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The purpose of this directive was to allow the Veteran the opportunity to provide clarity regarding previously submitted inconsistent statements and submissions regarding his employment and education history. The Board notes that the Veteran has not submitted the requested information. The Board also directed that the AOJ obtain an addendum medical opinion regarding the severity of the Veteran’s acquired psychiatric condition. Specifically, the addendum opinion was to address “the extent to which any identified symptoms or functional impairment are attributable to the Veteran’s PTSD (posttraumatic stress disorder) alone, as opposed to any other nonservice-connected disorder.” Furthermore, the addendum opinion required the examiner to “discuss the effect of the Veteran’s service-connected PTSD on his capacity for occupational activities (functioning) and daily activities during the pendency of the appeal from 2013.” In November 2020 the AOJ obtained an addendum opinion as directed. The examiner noted that the Veteran “has other mental health problems … that interfere significantly with the ability to work.” However, the examiner only addressed the effects of the Veteran’s acquired psychiatric disorder as of the April 2019 Compensation and Pension (C&P) examination, other than a brief note that the Veteran’s Global Assessment of Functioning (GAF) scores in 2012 and 2013 were in the 48-53 range. According to the examiner, such scores “would have been considered moderate to serious,” but the examiner failed to expand on the impact of that characterization on this specific Veteran’s functional impairment including what type of occupational impairment was due to the Veteran’s service-connected PTSD prior to his April 2019 VA examination. While GAF scores are no longer used to rate the seriousness of a psychiatric disability, the examiner should have provided a more detailed rationale and explanation regarding the impact of the Veteran’s PTSD with depressive disorder. Furthermore, the November 2020 examiner noted that the Veteran reported that his non-service-connected substance abuse disorder was in remission since 2011. However, the Veteran’s medical record shows that he had “recently used” illegal substances such as heroin as recently as November or December 2018. The Veteran reportedly only ceased using illegal drugs upon his incarceration, at which time he was put on a detoxification regimen. The Board finds that the November 2020 examiner’s opinion does not provide sufficient information to determine the severity and effects of the Veteran’s acquired psychiatric disorder for the period prior to the April 2019 VA examination. Furthermore, the November 2020 examiner did not address the Veteran’s recent history of substance abuse, and whether it is possible to distinguish between the symptoms of the Veteran’s PTSD and his substance abuse disorder. As the necessary development has not been completed, a further remand is necessary. The matters are REMANDED for the following action: 1. The AOJ shall provide the Veteran with the necessary information and documentation to complete, and submit, a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. All documentation sent and received by the AOJ must be associated with the claims file. 2. Obtain an addendum retrospective opinion regarding the functional effects caused by the Veteran’ service-connected PTSD with depressive disorder for the period prior to April 12, 2019. The examiner should provide an opinion as to the overall impairment caused by the Veteran’s PTSD including the effect of the Veteran’s service-connected PTSD with depressive disorder on the Veteran’s capacity for occupational activities as well as activities of daily living during the pendency of this appeal from 2013 to 2019. The examiner must indicate what functional impairments are caused by the Veteran’s PTSD with depressive disorder alone from 2013 to 2019, and what functional impairments are attributable to his non-service-connected substance abuse disorder, which the medical record shows was not in remission until his incarceration in 2018. If the Veteran is unable to distinguish the impairment due to service-connected PTSD with depressive disorder from other non-service-connected disorders including a substance abuse disorder the examiner must explicitly note such in the report, and explain why. (Continued on the next page)   A complete and detailed rationale must be provided for all requested opinions. If the examiner cannot provide the necessary opinions without resorting to speculation, the examiner must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.