Citation Nr: 21024764 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-11 323 DATE: April 26, 2021 REMANDED Entitlement to an initial increased rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from April 1967 to April 1969. The Board notes that the Veteran had additional service from July 1969 to September 1974 that is considered dishonorable for VA purposes. Sadly, the Veteran died in May 2014 during the promulgation of his appeal. His surviving spouse has been substituted for purposes of continuing his appeal. These matters come before the Board of Veterans’ Appeals (Board) from July 2012 and October 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran’s surviving spouse (also referred to as the “appellant”) appeared at a December 2015 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. These matters have a lengthy procedural history that has been outlined in detail in prior Board decisions that are incorporated herein by reference. The claims were most recently previously before the Board in September 2019. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court) and in September of 2020, the Court issued a Memorandum Decision in response to the appellant’s appeal of the Board’s September 2019 decision. The Court vacated and remanded the appellant’s claims and they have now been returned to the Board for further appellate review. 1. Entitlement to an initial increased rating in excess of 50 percent for PTSD is remanded. The Board cannot make a fully-informed decision on the Veteran’s PTSD claim in lieu of the Court’s Memorandum Decision until additional development is undertaken on remand. More specifically, as directed by the Court, the Board recognizes the recent Court decision in Miller v. Wilkie holding that when a VA examiner fails to address relevant lay evidence and the Board fails to find the Veteran [or appellant] not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. See Miller v. Wilkie, 32 Vet.App. 249 (2020). In this case, as the Court found that the December 2016 VA examination report that was previously relied on by the Board in its most recent decision did not properly address the lay evidence of record, a remand for an additional retrospective opinion is warranted. Therefore, a retrospective medical opinion should be sought on remand which addresses the Veteran’s complete psychiatric symptomology prior to his death as well as the impact any noted symptomology had on the Veteran’s occupational and social functioning. This opinion should have a particular focus on the lay statements of record including the December 2015 statement of the appellant’s observations of the Veteran’s PTSD-related symptoms. 2. Entitlement to a TDIU is remanded. The Board’s directive regarding the Veteran’s increased rating claim for PTSD that is being remanded could potentially have an impact regarding the TDIU issue; therefore, the issue of a TDIU is inexplicably intertwined with the issues being remanded and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation. The matters are REMANDED for the following actions: 1. Obtain an addendum retrospective opinion from an appropriate clinician regarding the prior severity of the Veteran’s service-connected psychiatric disorder, who should be the clinician who provided the December 2016 opinion, if available. The clinician must be provided with and review the entire claims file, to include a copy of this remand. The clinician must specifically note on the VA opinion whether the Veteran’s VA claims file, to include a copy of this remand, was reviewed in connection with this opinion. If necessary to respond to any inquiry below, the appellant should be scheduled for an interview, either via telephone or in-person, whichever is more convenient, to obtain such information. It is requested that the examiner review all pertinent records associated with the claims file and, considering both medical and lay evidence of record: (a.) Comment on the severity of the Veteran’s service-connected PTSD, including whether the evidence demonstrated a progression of symptoms with particular periods where the severity differed, especially in lieu of the lay statements made by the appellant with particular regard to the December 2015 assertions. The clinician should report all signs and symptoms necessary for rating the Veteran’s disability under the General Rating Formula for Mental Disorders and should fully describe the functional effects of the Veteran’s service-connected mental health condition, including its effects on occupational functioning and daily activities (such as his ability to follow instructions, interact with coworkers, the public, or supervisors, etc.). 2. After completing all of the above, and conducting any additional development deemed necessary in light of the expanded record, readjudicate the claim on appeal. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.