Citation Nr: 21029911 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-40 129 DATE: May 17, 2021 REMANDED Entitlement to an initial increased rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to December 1969. These matters are before the Board of Veterans' Appeals (Board) from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran's appealed issues was previously remanded by the Board for further development in September 2019. This matter is again before the Board. 1. Entitlement to an initial increased rating in excess of 50 percent for service-connected PTSD is remanded. The Veteran believes that an initial increased rating in excess of 50 percent for service-connected PTSD is warranted. See September 2020 Appellate Brief. A September 2019 Board decision remanded the PTSD issue for a more contemporaneous examination. The examination took place in November 2019, and the examiner noted the Veteran's report that he had daily intrusive thoughts and experienced anxiety. The Board finds the November 2019 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other evidence, the examination did not consider/was unable to consider the Veteran's reports that he would lay awake at night thinking about service; he was mentally scarred for life; he had nightmares about service; sometimes while driving, he would forget where he was, would forget where he was going, and would get lost; his mind seemed to just come and go; he had difficulty adapting to stressful situations at work and at home; he sometimes had cold sweats with his nightmares; he had become violent at times; he had impaired judgment and memory loss; and he had a hard time maintaining relationships with family and friends. See September 2019 Form 9; July 2019 Form 9; April 2019 Form 9; December 2018 Form 9; October 2017 Form 9; January 2017 Form 9. The Board also finds the June 2015 examination inadequate because it did not consider/was unable to consider the Veteran's 2015 reports of memory loss, forgetting where he was or where he was going while driving, nightmares, and having a hard time with stressful situations and maintaining relationships. For the last three years, he was having problems performing work tasks, he had a lack of concentration and judgment, he had problems with his thought processes, he had problems with social situations and his mood with family, and he had disorientation to the point where he had to stay within a certain radius from home because he would find himself lost and turned around while driving. See June 2015 C&P Exam; December 2015 Form 9; November 2015 Correspondence. In sum, it does not appear that the June 2015 or November 2019 VA examiners accounted for the Veteran's competent and credible lay reports of experiencing psychiatric symptoms throughout the pendency of the appeal in completing the Disability Benefits Questionnaires. As such, these VA examinations are inadequate for the purpose of readjudicating the Veteran's appeal, and another remand is necessary. 2. Entitlement to a TDIU is remanded. The Veteran believes that a TDIU is warranted. See September 2020 Appellate Brief. The Board finds that the TDIU issue is inextricably intertwined with the service-connected PTSD issue being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994). As favorable action on the remanded service-connected PTSD issue could potentially result in the award of a TDIU, the TDIU issue is deferred until the requested development has been completed. Id. Additionally, the Board concludes that further development is necessary to establish when the Veteran last participated in a substantially gainful occupation. Specifically, while the Veteran stated that he had not worked since 2015, records from his most recent employer reflect that that he last worked for them in 2011. Id. Additionally, the Veteran referenced work as a consultant, but no details concerning any consultant work have been provided. See November 2015 Correspondence. A remand will allow the Veteran an opportunity to provide updated information on his employment history as well as other relevant information. The matter is REMANDED for the following action: 1. Provide the Veteran with another opportunity to identify any relevant outstanding private and/or VA treatment records. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Provide the Veteran with a new VA Form 21-8940 with instructions that updated information should be provided to assist with the adjudication of the TDIU issue. The Veteran should specifically be asked to provide information concerning all employment during the appeal period (i.e. since March 2014), including but not limited to, self-employment and consulting work. Complete any additional development indicated by the information on the returned form. 3. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and/or maintain substantially gainful employment due to service-connected disability (i.e. since March 2014) and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of the tax returns for the requested years, he may use the IRS form cited to above. 4. Schedule an appropriate VA examination to determine the nature and severity of the Veteran's service-connected PTSD throughout the entire appeal period (i.e. since March 2014). The examiner should also consider the impact that the Veteran's PTSD has had on the Veteran's daily life since March 2014. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected PTSD since March 2014 and is requested to furnish an opinion with respect to the following: (A) Is it at least as likely as not (a 50 percent or greater probability) that at any point since March 2014, the Veteran has had 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 work like setting); and inability to establish and maintain effective relationships? If yes, for which periods? (B) Is it at least as likely as not (a 50 percent or greater probability) that at any point since March 2014, the Veteran has had 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; and memory loss for names of close relatives, own occupation, or own name? If yes, for which periods? The examiner should ask the Veteran concerning the periods of time in which the Veteran has experienced each of his PTSD symptoms and provide that information in the report. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) A medical record from 2019 showing the Veteran's report of daily intrusive thoughts. The examination found recurrent, involuntary, and intrusive distressing memories; an exaggerated startle response; energy problems; and anxiety. See November 2019 C&P Exam. (2) The Veteran's report that PTSD has kept him from working and that he is not mentally able to be employed. He has suffered from a long-term unemployment issue. This problem has caused serious issues for himself and his family. See October 2019 VA 21-8940; October 2019 Correspondence; September 2019 Appellate Brief. (3) The Veteran's 2019 reports that he thought about terrible things from service every day, would lay awake at night thinking about those terrible things, had nightmares about those terrible things, would never forget those terrible things, and was mentally scarred for life. Sometimes while driving, the Veteran would think about the terrible things from service and forget where he was, forget where he was going, or get lost. See October 2019 Form 9; September 2019 Form 9; July 2019 Form 9; April 2019 Form 9; March 2019 Form 9. (4) The Veteran's 2018 reports that he thought about the terrible things from service every day, would lay awake at night thinking about those terrible things, had nightmares about those terrible things almost every night, and was mentally scarred for life. Sometimes while driving, the Veteran would think about the terrible things from service and forget where he was or where he was going. See September 2018 Form 9; September 2018 Form 9; April 2018 Form 9. (5) The Veteran's 2017 reports that he thought about the terrible things from service every day, would lay awake at night thinking about those terrible things, had difficulty adapting to stressful situations at home and work, wished he could forget about service, sometimes woke up from nightmares with cold sweats, had become violent at times, had impaired judgment and memory loss, had a hard time maintaining relationships with family and friends, and was mentally scarred for life. Sometimes while driving, the Veteran would forget where he was, forget where he was going, and his mind just seemed to come and go. See October 2017 Form 9; August 2017 Form 9; January 2017 Form 9. (6) The Veteran's 2016 reports that he had difficulty adapting to stressful situations at home and work, got in a very depressed mode, had become very distressed and had thoughts about committing suicide, sometimes woke up from nightmares about the terrible things from service with cold sweats, had become irritable and violent at times, had impaired judgement and memory loss, and had a hard time maintaining relationships with family and friends. Sometimes while driving, the Veteran would forget where he was or forget where he was going. See July 2016 Form 9; June 2016 Form 9; May 2016 Form 9; February 2016 Form 9. (7) The Veteran's 2015 reports of nightmares about the terrible things from service, impaired judgment and memory loss, and a very hard time dealing with stressful situations and maintaining relationships. Sometimes while driving, the Veteran would forget where he was or forget where he was going. See December 2015 Form 9. The Veteran also reported that over the past three years, it was getting more difficult to perform work tasks. A lack of concentration and judgment made it impossible to keep working. He struggled with problems related to his thought processes. He had problems with social situations and his mood with his family. He had problems with disorientation and had a limited radius he could go from home because he would find himself lost and turned around. See November 2015 Correspondence. (8) A medical record from 2015 showing that the Veteran thought about the terrible things from service a lot; had nightmares about those terrible things; had recurrent/involuntary/intrusive distressing memories; had recurrent distressing dreams; had intense or prolonged psychological distress from exposure to cues; avoided or tried to avoid distressing memories, thoughts, or feelings related to past trauma; had persistent/distorted cognitions about the cause or consequences of past trauma that led him to blame himself/others; had a persistent negative emotional state, such as fear, horror, anger, guilt, or shame; had hypervigilance; had an exaggerated startle response; had concentration problems; and had clinically significant distress or impairment. The Veteran also had anxiety, suspiciousness, panic attacks weekly or less, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances like work or a work-like setting, and flashbacks. Further information is provided. See June 2015 C&P Exam. (9) Any and all other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 5. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of the record for review. If either issue is not granted to the fullest extent, the Veteran and his representative must be provided a copy of the readjudication and afforded an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.