Citation Nr: 21025581 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 13-08 167 DATE: April 28, 2021 ISSUES 1. Entitlement to a disability evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) with unspecified depressive disorder and alcohol use disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REMANDED Entitlement to a disability evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) with unspecified depressive disorder and alcohol use disorder is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to June 1976. This matter is before the Board of Veterans Appeals (Board) on appeal from October 2011 and October 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A March 2013 rating decision granted an increased evaluation of 50 percent for PTSD with unspecified depressive disorder and alcohol use disorder from October 5, 2012. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, the claim remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Next, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2018. A copy of the hearing transcript has been associated with the claims file. By way of procedural history, a March 2019 Board Decision denied the benefits sought on appeal. Later, a February 2020 Order from the United States Court of Appeals for Veterans Claims (Court) granted a February 2020 Joint Motion for Remand (JMR) with respect to the issues currently before the Board. The Court vacated the March 2019 Board Decision and remanded the matters for appropriate action. This is discussed further below. A July 2020 Informal Hearing Presentation (IHP) repeats the background and arguments from the February 2020 JMR. It concludes, “WHEREFORE, the parties request that the Court enter an order vacating the March 20, 2019, Board decision and remanding it for readjudication in accordance with the above discussion.” Next, the issues were remanded by the Board in July 2020. Recently, a January 2021 Rating decision favorably granted an increased 70 percent disability rating for post-traumatic stress disorder (PTSD) with unspecified depressive disorder and alcohol use disorder dating back to June 17, 2011. This is the original effective date of the claim. This grant extinguished the previously staged ratings for PTSD. Given the uniform evaluation, the issues are now listed as a single issue on the title page. The claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). First, on April 3, 2018, VA sent a development letter to the Veteran and asked him to return a completed VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. No response was received. Second, on October 2, 2018, the RO issued a Rating decision identifying the critical evidentiary requirements necessary to fully develop his claim for a TDIU. The Veteran was informed: On 04/03/18 we wrote and asked you to send us a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. As of this date, we have not received a complete VA Form 21-8940. This form is required to further consider your claim. As we have not received a completed form from you, entitlement to IU is not established. Additionally, the evidence shows you are currently working full time as a welder and mechanic. In the July 2020 Remand, the Board determined that in light of the Veteran and his attorney’s explicit request in the February 2020 JMR, a remand was necessary for additional development. The Board emphasized that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107 (a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). Here, a remand is necessary in compliance with the July 2020 Board Remand directives to address the errors identified by the Veteran’s attorney in the February 2020 JMR. Several areas of development were required by the July 2020 Remand. Under Stegall, compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). We discuss the development for each issue below. To expedite his appeals, the Veteran and his representative must provide the documents highlighted in the prior Board Remand. 1. Entitlement to a disability evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD) with unspecified depressive disorder and alcohol use disorder is remanded. The Board incorporates its discussion from the sections above by reference. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is now in receipt of a uniform evaluation. PTSD with unspecified depressive disorder and alcohol use disorder is now rated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. DC 9411 and other DC’s addressing psychiatric disabilities are addressed under the General Rating Formula for Mental Disorders. Ratings are assigned according to the manifestation of particular symptoms. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. By way of background, VA received the Veteran’s claim for service connection in part for PTSD and depression in June 2011. The Veteran and his representative asserted that the 30 percent and 50 percent initial staged ratings for PTSD did not accurately depict the severity of the disability during the respective stages. Next, briefly, the August 25, 2011 VA examiner opined that the Veteran’s symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In particular, the VA examiner did not check the box indicating suicidal ideation. On October 5, 2012, the Veteran was afforded another VA psychiatric examination. The VA examiner indicated that the Veteran’s level of occupational and social impairment was best summarized by, “occupational and social impairment with reduced reliability and productivity.” Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner documented in part, “There are no suicidal or homicidal thoughts, ideation, plans, or intent, or history of suicidal or homicidal thoughts, ideation plans or attempts.” Later, the Veteran was afforded an April 2018 VA psychiatric examination. The Veteran reported increased depression. The Veteran reported that sleep medication is no longer effective. He reported that sometimes he lies awake all night, has little to no energy, and feels like his skin is crawling. The Veteran also reported occasional nightmares related to combat as well as other vivid dreams including about traveling and work. He has little contact outside of his home. He avoids people and loud noises. He complained of problems with concentration and memory. The VA clinical psychologist found that the Veteran has occupational and social impairment with reduced reliability and productivity due to chronic sleep impairment, mild memory loss, anxiety, depressed mood, disturbances of motivation and mood, impairment in short-term and long-term memory, and difficulty in understanding complex commands. The Veteran also denied suicidal ideation, though he reported that he often feels like he is “wasting air.” Months later, at the November 2018 hearing, the Veteran explained that he has been a welder/mechanic since 1965. He testified regarding an incident at work. “I had a mild stroke at work. And I went down on the ground and my boss grabbed me. He’s a big man. And he grabbed me and got me up. And they called the ambulance. The ambulance came.” See November 2018 Hearing Transcript, p. 7. Regarding his employment, the Veteran testified that he last had a full time, 40 hour work week job, “Just last year.” See November 2018 Hearing Transcript, p. 8. Next, a January 22, 2020 VA Mental Health Medication Management Note shows that the Veteran originally presented to the Denver Vet Center in August 2011 for help with PTSD. Previously, by way of the February 2020 Joint Motion for Remand (JMR), the Veteran through appeals counsel reasserted that he is entitled to an increased disability evaluation for PTSD. He highlighted snippets from the record, and raised new contentions. Appeals counsel primarily cited a fleeting reference to one prior instance of hospitalization for suicidal ideation while inebriated. See February 2020 JMR, p. 2. The Board observes that counsel neglected to include that the cited September 2, 2011, VA Mental Health Medication Management Note has a second sentence that follows. “He has no h/o suicide attempts.” Moreover, the fact that this is one reference over approximately ten years is not fully reconciled. Indeed, the Board is obligated to review the entirety of the record and interpret Veterans’ claims liberally; however, need only make reasonable efforts to corroborate claims, and not search the record to raise arguments in a Veteran’s stead. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Also in the JMR, counsel cited caselaw and regulations in arguing for the grant of a 50 percent rating for PTSD prior to October 5, 2012. See February 2020 JMR, p. 3. Nevertheless, the challenge to the adequacy of the October 2012 VA PTSD examination was vague, phrased in terms of, “However, the October 2012 VA PTSD examination included statements which may indicate that Appellant’s symptomatology, which the Board found consistent with a 50 percent rating, began prior to the date of the examination.” (emphasis added.) This is not conclusive. Furthermore, as the finder of fact, the Board is required to weigh and analyze all the evidence of record and to make determinations as to the credibility of the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1998). “The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.” Bastien v. Shinseki, F.3d 1301, 1306 (Fed. Cir. 2010). The Board may permissibly draw inferences from the medical evidence, including an overall reading of a VA report. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012) (the Board is permitted to draw inferences based on medical reports so long as the inference does not result in a medical determination). Next, in the July 2020 Remand, the Board highlighted that appeals counsel was essentially requesting that the Board reconsider its weighing of the evidence based upon a selective plucking of references in the claims file. The JMR then shows, “The record contains treatment records from the Denver Vet Center from August 2011 to November 2012, but no records from November 2012, onward. Because the duty to assist compels VA efforts to obtain adequately identified VA medical records, the Board was required to remand for the Vet Center records to be requested.” See February 2020 JMR, p. 4. Although there may be useful information in potentially outstanding treatment records, it is also not certain that they would demonstrate more severe symptomology than shown at the series of VA examinations. The Veteran through counsel only then identified potentially outstanding treatment records from the “Denver Vet. Center” from November 2012 to the present. The Board requested that the Veteran through counsel assist the Board in submitting any treatment records in his possession, including any from the Denver Vet. Center. Meanwhile, VA would attempt to obtain any additional VA treatment records from the Denver Vet. Center that had only then been identified. The Board concluded in July 2020 that a VA examination that includes a retrospective medical opinion was necessary to capture the severity of the Veteran’s PTSD disability for the entire appeals period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The Veteran’s lay statements regarding the frequency of any suicidal ideation were to be considered as part of this medical evaluation of the severity of PTSD over the appeals period. Ongoing VA treatment records contain a November 16, 2020 VA Mental Health Medication Management Note. It shows in part, “SUICIDAL OR VIOLENT IDEATION: occasional thoughts, not intent or plan and will get help if needed.” Next, the Veteran was afforded a December 2020 VA PTSD examination. An in person examination was performed by A. D.R., PsyD. She also reviewed the claims file. The Veteran’s occupational and social impairment was summarized by occupational and social impairment with reduced reliability and productivity. The VA examiner documented, “Since the time of the last evaluation in April 2018, Veteran was employed at All American Trailers as a Welder. In early 2020, he resigned from his position due to ‘being too old and hurt’ and no longer able to perform his job duties without fear of hurting himself or others.” Regarding the Veteran’s social history, the VA examiner described: Since the time of the last evaluation in April 2018, Veteran has remained unmarried and single. He currently lives alone in Thorton, Colorado. He considers his ex-girlfriend, boss, and a few close friends to be his support system. He currently spends the majority of his time at home playing Solitary on his computer or sleeping. He stated that he avoids most social interactions and prefers to spend the majority of his time at home aloe. He stated that he feels significantly anxious in social settings and “likes to just be away from everyone and everything.” Nevertheless, additional questions posed in the July 2020 Board Remand were not answered. Next, in January 2021, VA received a VA medical opinion. A different examiner, S. J., PsyD, only reviewed the claims file. There is no indication that an in-person or telehealth examination was performed. The VA examiner created a summary of relevant treatment records from the claims file. The VA examiner concluded that PTSD is best summarized by, “Occupational and social impairment with reduced reliability and productivity.” The Board observes that these examinations demonstrate possible improvement in the severity of the Veteran’s impairment as compared to the current 70 percent rating recently granted by the RO. Nonetheless, this medical opinion does not show that an in person examination was performed or that the retrospective medical opinion was based upon a contemporaneous examination of the Veteran. Months later, the April 2021 Informal Hearing Presentation (IHP) concludes with a request for a total schedular evaluation for PTSD. The Veteran through his representative alleges, “Furthermore, the description of his symptoms seems to be at variance with the doctor’s overall assessment.” In the instant case, the Veteran’s appeals counsel requested specific areas of development. These included a consideration of lay statements, including as part of a retrospective medical opinion. Compliance with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Veteran should be afforded a new PTSD VA examination with medical opinion to capture the severity of the Veteran’s PTSD disability across the entire appeals period. See Chotta, supra. An in person examination with interview must be performed by the same examiner rendering any medical opinions so that the Veteran can offer lay statements to the examiner regarding the history and frequency of any suicidal ideation. Turning to the allegations regarding outstanding VA treatment records from the JMR, the Board observes that on October 8, 2020 VA received a batch of historical treatment records from the Denver Vet Center. These date as far back as a VA psychiatric treatment record from January 25, 2013. As the specific date claimed for records was November 2012, VA will make another attempt to obtain these records, to the extent they exist. The Veteran is also invited to submit copies. The Veteran was sent a letter dated January 8, 2021 reading in part, “We need your treatment records from the Denver Vet. Center from November 2012 to the present, to the extent they exist. You may also submit copies of these records in your possession.” No direct response was received. The Board emphasizes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107 (a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). Therefore, a remand is warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board incorporates its discussion from the sections above by reference. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of the Department of Veterans Affairs that all 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 (b). In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation is a legal one, to be undertaken on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each veteran’s education, training, and work history). A review of the procedural history for this TDIU claim is instructive. By way of background, on April 3, 2018, VA sent a development letter to the Veteran and asked him to send complete the required VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. To date, this has not been received. The Veteran and his representative were notified of this critical evidentiary requirement necessary to substantiate his claim by way of a Rating decision and Supplemental Statement of the Case (SSOC), both dated October 2, 2018. Next, at the April 2018 VA examination, the VA examiner elicited an occupational history from the Veteran. It shows: [The Veteran] had been employed for the past 12 years at a shop that does trailer repairs. [The Veteran] has been a welder for over 50 years. He reports, however, that he can no longer work due to problems with memory loss, shaking, and complaining of “my head just stops.” He attributes his difficulty largely to increased depression. [The Veteran] expressed apprehension that he would make a mistake or hurt someone if he attempted to continue working. He did indicate that he is still on good terms with his employer, and they miss him at work. Turning to activities of daily living, it shows: [The Veteran] wakes between 5 and 6 AM and he fixes coffee, and he will play solitaire on the computer and either prepare breakfast or go to a nearby restaurant for breakfast. He spends most of the day watching TV or playing solitaire. He particularly enjoys watching Westerns. [The Veteran] will take a nap in the afternoon and does prepare dinner. He usually goes to bed between 9 and 10 PM. The Board incorporates its discussion of the Veteran’s reported daily activities from the November 2018 hearing. These included making breakfast and changing a furnace filter in the crawlspace. The Board observes that the Veteran also testified, “And I do have a lot of things wrong with me other than what the service connected was all about. But I shake all the time.” Significantly, a January 22, 2020 VA treatment record shows that the Veteran worked full time as a welder and mechanic. He hoped to drive to Arizona to visit his son there in the future. He was looking around for possible part time work that was not physically demanding. Next, the February 2020 JMR shows in part that the Board “shall address whether Appellant’s employment prior to 2017 took place in a protected work environment, or was otherwise marginal.” See February 2020 JMR, p. 5. In July 2020, the Board afforded the Veteran an opportunity to fully develop this claim, including any contentions regarding employment in a protected environment. To the extent this is his position, the Veteran through his representative was requested to provide additional information beyond a conclusory statement that the work environment was “protected” or that the employment was “marginal.” The Veteran was required to submit a complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Recently, the Veteran was sent a September 8, 2020 VA Subsequent Development Letter. The VA Form 21-8940 was requested. No response was received. Separately, the Veteran was able to fill out and submit a vocational rehabilitation application. A November 2020 VA letter shows that the Veteran’s vocational rehabilitation was denied. Recently, the February 2021 Supplemental Statement of the Case (SSOC) informed the Veteran and his representative that the paperwork for a TDIU was not received, and the TDIU claim would remain denied. The April 2020 IHP fails to address the missing documentation. Indeed, “The duty to assist is not always a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). On remand, the Veteran will be afforded another opportunity to submit the necessary forms to substantiate his TDIU claim. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Make another attempt to obtain copies of the Veteran’s treatment records from the Denver Vet. Center from prior to January 2013, to the extent they exist. The Veteran may also submit copies of these records in his possession. 3. Send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Verification. These must be completed in their entirety and returned to VA. The Veteran should also submit copies of any leave and earnings statements attached to these documents. 4. Please schedule the Veteran for a VA examination with retrospective medical opinion by an appropriate examiner to determine the degree of severity of his service-connected PTSD with unspecific depressive disorder and alcohol use disorder. The VA examiner should review the entire claims file and elicit a lay history from the Veteran during the examination. The VA examiner should provide a history of any distinct stages or changes in the symptomatology and severity of PTSD including before and after October 5, 2012. Attention is invited to the August 2011 and October 2012 VA examination reports, along with the August 2011 lay statement from the Veteran’s spouse. To the extent possible, the examiner should comment on the presence of any suicidal ideation, if any, and how that may or may not have impacted the severity of PTSD during any distinct stage(s). Additionally, the VA examiner should comment on the Veteran’s ability to function in an occupational environment, and describe the functional impairment caused solely by the service-connected disability or disabilities. Attention is invited to the Veteran’s November 2018 hearing testimony. If applicable, the VA examiner should consider lay statements and comment on any protected environments in the Veteran’s employment history. A complete rationale should be provided for all opinions expressed. 5. Upon obtaining the completed clarification and development ordered above (to the extent possible), review the claims file to ensure that it addresses the three issues on appeal. Any inadequacies should be addressed prior to recertification to the Board. 6. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.