Citation Nr: 21030568 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-30 424 DATE: May 19, 2021 REMANDED Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for residuals of an in-service traumatic brain injury (TBI) is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 2007 to June 2012, to include service in Southwest Asia Theater of operations during the Persian Gulf War. He is in receipt of a Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the file. At the hearing, the Veteran and his representative asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. This request was granted on the record, and additional evidence was received by the Board in December 2018. These appealed issues were previously before the Board in March 2020, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's March 2020 remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD is remanded. As directed by the Board in the March 2020 remand, the Veteran was provided a VA psychiatric examination in August 2020 to determine the current frequency, severity, and duration of the Veteran psychiatric symptoms. Notably, the August 2020 VA examination report reflects that the Veteran demonstrated mostly mild psychiatric symptoms and resulting functional impairment due to his service-connected PTSD and major depressive disorder, and he denied experiencing certain severe symptoms normally associated with a 100 percent evaluation, such as persistent delusions and hallucinations, persistent danger of hurting himself or others, grossly inappropriate behavior, and neglect of personal appearance and hygiene. In January 2021, after the Veteran's appeal had been certified and transferred back to the Board by the AOJ, the Veteran submitted a November 2020 statement from a private psychiatrist who alluded to an "attached [Disability Benefits Questionnaire]" and opined that the Veteran's service-connected psychiatric disability resulted in total social and occupational impairment due to severe symptoms, such as persistent delusions and hallucinations, persistent danger of hurting himself or others, grossly inappropriate behavior, and neglect of personal appearance and hygiene, among others. Curiously, these severe symptoms were denied by the Veteran at the most recent VA examination, which was completed only three months prior. While the Board notes the November 2020 statement from the private psychiatrist, it appears that the findings are inconsistent with the evidence of record and that the record for review may be incomplete. Initially, the November 2020 submission was not accompanied by the DBQ alluded to in the statement. It appears that such may have been received by VA, but not uploaded into the Veteran's electronic VA file. Further, it is unclear how the psychiatrist determined that the Veteran's service-connected psychiatric disability resulted in total occupational impairment since he is currently employed and has been since at least mid-2014. Additionally, while the Board observes that the Veteran's psychiatric symptoms may wax and wane due to various factors, the severe symptoms noted in the November 2020 statement were absent during the August 2020 VA examination, which occurred only three months prior. The Board finds that review of the DBQ would be important to reconcile these seemingly incongruent findings. To this point, the Board notes that the same private psychiatrist completed another DBQ for the Veteran in October 2018, and again, the reported symptoms were much more severe than those reflected in the Veteran's VA treatment records and reports of VA examination completed contemporary with this statement. In light of above, the Board concludes that another remand is necessary in order to ensure completeness of the record for review and reconcile the incongruent findings of the August 2020 VA examiner and the private psychiatrist in November 2020. 2. Entitlement to service connection for residuals of an in-service TBI is remanded. As directed by the Board in the March 2020 remand, the Veteran was provided a VA examination to determine the nature and etiology of any TBI residuals present during the appeal period. After a review of the record and examination of the Veteran, the August 2020 VA examiner opined that, while the Veteran's in-service TBI resulted in diagnosed residuals, such had resolved, and thus, the matter of a medical nexus was not addressed. The Board concludes that a remand is necessary in order to obtain the previously requested nexus opinion, as the criteria of a current disability has been fulfilled by the diagnosis of TBI residuals during the appeal period, even though such have subsequently resolved. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 3. Entitlement to a TDIU is remanded. As per the Board's March 2020 remand, the Veteran was provided a VA Form VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) for him to complete and submit in support of this appeal. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Unfortunately, the Veteran did not respond to this request, and thus, the Board's ability to readjudicate this appealed issue is frustrated. Pointedly, the record for review reflects that the Veteran endured a period of unemployment early in the appeal period (in 2013 and part of 2014), and while it appears that he has been employed since mid-2014, such may have been in a sheltered work environment, and thus, may not qualify as a substantially gainful occupation under 38 C.F.R. § 4.16. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). In this regard, the Veteran is reminded that VA's duty to assist him in substantiating his TDIU appeal is not a one-way street, and thus, he is encouraged to work with his accredited representative and/or any other resource available to cooperate with the AOJ's efforts to obtain a completed VA Form 8940 that will be forthcoming as a result of this remand. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *In completion of the VA Form 21-8940, the Veteran is asked to provide a statement to VA which outlines his work environment and any circumstances that may render such akin to a sheltered work environment, to include any concessions or special allowances by his supervisor(s) to account for the functional impairment stemming from his service-connected disabilities. *The Veteran is encouraged to work with his representative and cooperate with the AOJ by providing the requested information and/or evidence within a reasonable time. 2. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. 3. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for the disabilities subject to this remand. *The Board is particularly interested in the Disability Benefits Questionnaire alluded to by the private psychiatrist who provided the November 2020 statement in support of the Veteran's appeal. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the claims file or make a formal finding that a second request for such records would be futile. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of any identified residuals of an in-service TBI. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. Thereafter, the VA examiner must address the following: a. The examiner is asked to confirm or rule out the diagnosis of a TBI during the appeal period (since June 30, 2012). *In addressing the above, the examiner must reconcile his/her findings with the evidence of record, to include the private October 2018 Disability Benefits Questionnaire, which provides such a diagnosis. If the diagnosis is ruled out, the examiner is asked to discuss whether the Veteran's nausea, sensitivity to light, headaches, and cognitive impairment, are attributable to his in-service TBI or another cause. *The examiner is reminded that the criterium of a current disability is met if a disability is diagnosed at any time during or contemporaneous to the appeal period, even if such subsequently resolves. b. If it is determined that the Veteran experiences symptoms that meet the criteria of a diagnosis of a TBI during the appeal period, please provide an opinion concerning whether this disability is proximately due to or the result of any incident of the Veteran's service, to include his verified in-service head injuries. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must undertake any additional development deemed appropriate, to include referring the Veteran's appeal seeking a TDIU, to include undertaking any actions necessary to verify the Veteran's complete occupational history, yearly earnings, and the circumstances of his employment in furtherance of determining whether such may qualify as a sheltered work environment under Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). 6. Thereafter, the AOJ must readjudicate the Veteran's appeal in light of the totality of the record. If any benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with a copy of the readjudication and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.