Citation Nr: 21025027 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-10 498 DATE: April 27, 2021 REMANDED Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD) in excess of 70 percent, for the period prior to May 4, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 4, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 2005 to December 2005 and from July 2006 to October 2007 with service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and April 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) in an August 2015 Travel Board hearing. A transcript of that hearing is of record. This matter was previously remanded by the Board in February 2016. In November 2018, the Board denied the issues of entitlement to a rating higher than 70 percent for PTSD prior to May 4, 2017, and a TDIU prior to May 4, 2017. The Veteran appealed the November 2018 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In August 2019, CAVC granted a Joint Motion for Remand (JMR) filed by the parties. The parties agreed that the Board did not address an April 11, 2011 mental health management note that indicated the Veteran was “distressed about having yet another dissociative episode just two weeks prior where he pointed a gun at a woman and when he came to himself he didn’t remember doing so,” as well as whether the Veteran’s other dissociative episodes such as the one described in April 2011, impacted his ability to obtain or maintain substantially gainful employment. In March 2020, the Board remanded this matter for additional development, specifically to obtain outstanding VA records from May 2017 to current, records pertaining to any periods of incarceration, including any medical treatment records, prior to May 2017, and the Veteran’s tax returns for 2011 through 2017. In March 2020 and June 2020, VA requested that the Veteran identify outstanding private treatment records, including records from the Columbia Vet Center, from May 2017; identify medical treatment records for any periods of incarceration prior to May 2017; and, submit tax returns for the years 2011 through 2017. To date, the Veteran has not provided a response to the request. In April 2020, VA notified the Veteran that that VAMC medical records could not be located and were therefore unavailable for review, as further attempts to obtain the records would be futile. Additional pertinent VA treatment records were associated with the record after the August 2020 Supplemental Statement of the Case (SSOC). See CAPRI dated October 27, 2020. In December 2020, the Veteran through his representative waived review of the additional medical evidence by the agency of original jurisdiction (AOJ). 1. Entitlement to an initial evaluation in excess of 70 percent for PTSD for the period prior to May 4, 2017 is remanded. 2. Entitlement to a TDIU prior to May 4, 2017 is remanded. The Veteran contends that an increased rating for his service-connected PTSD is warranted for the period on appeal. Additionally, the Veteran contends that a TDIU is warranted for the period on appeal. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for additional development and for substantial compliance with the prior March 2020 remand instructions. Pursuant to the prior remand instructions, the Veteran was scheduled for a VA examination to determine the severity of his service-connected PTSD, from April 15, 2011 through May 4, 2017, in June 2020. With regard to PTSD, the examiner indicated that the Veteran experienced two documented incidents of dissociative episodes in December 2010 and April 2011; the Veteran’s psychiatric impairments are a combination of PTSD and traumatic brain injury (TBI); and, the most recent May 2017 VA examination diagnosed the Veteran with PTSD with total occupational and social impairment. However, the examiner did not opine as to the levels of social and occupational impairment caused by the Veteran’s PTSD alone prior to May 4, 2017 pursuant to the March 2020 remand instructions. With regard to TDIU, the examiner indicated that the Veteran “has definitely been unable to sustain any gainful employment for more than a year or so,” and his “PTSD symptoms have significantly interfered in his ability to sustain gainful employment.” However, the examiner did not indicate the date on which the Veteran’s employment was precluded as directed by the March 2020 Board remand. In light of the above, the Board finds that the June 2020 medical opinions did not fully respond to the Board’s remand directives and are therefore insufficient to fairly decide the Veteran’s claims. As such, the claims must be remanded once again because the RO did not comply with the Board’s prior remand directives to obtain adequate medical opinions on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, addendum medical opinions must be obtained that are adequate for the Board to make an informed decision on the Veteran’s claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).] The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the severity of the Veteran’s service-connected PTSD from April 15, 2011 through May 4, 2017. The entire claims file, including a copy of this remand, should be provided and reviewed by the examiner. The examiner is asked to: (a) To the extent possible, opine as to the levels of social and occupational impairment caused by the Veteran’s PTSD alone prior to May 4, 2017. The examiner is specifically instructed to consider and address the report that, in a dissociative episode in April 2011, the Veteran threatened someone with a firearm after being cut-off in traffic. See April 2011, Columbia VAMC records. (b) Explicitly address whether the Veteran’s PTSD alone prevented him from obtaining or maintaining substantially gainful employment, and if so, the date on which employment was precluded. (c) If there are any periods prior to May 4, 2017 in which employment was not precluded by the Veteran’s PTSD alone, the examiner should address whether the Veteran was prevented from obtaining or maintaining substantially gainful employment due to his service-connected disabilities combined, and if so, the date on which employment was precluded. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.N., 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.