Citation Nr: 25005065 Decision Date: 04/15/25 Archive Date: 04/15/25 DOCKET NO. 19-09 770 DATE: April 15, 2025 REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ). The Veteran filed a Notice of Disagreement in November 2017. The Veteran perfected his appeal to the Board in the March 2019 VA Form 9. This case was last remanded by the Board in January 2024. Subsequently, the AOJ issued the October 2024 Supplemental Statement of the Case (SSOC). The Board acknowledges that this issue has been remanded multiple times. However, although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to a TDIU rating. The Veteran and his representative contend that he is entitled to TDIU because of all his service-connected disabilities. See December 2023 Appellant's Post-Remand Brief, March 2025 Post-Remand Brief. The Veteran's latest application for TDIU in November 2017 listed PTSD specifically as the service-connected condition that prevents him from working. By way of history, this case was remanded by the Board in March 2023. Specifically, the Board asked for an addendum medical opinion from the examiner that conducted the October 2020 VA PTSD examination. The Board essentially found that the October 2020 VA examination was contradictory as to the issue of whether the Veteran's PTSD impacted his ability to work. In the remarks section of the examination report, the examiner stated that the "mental condition is not precluding [the] Veteran from a regular job, since his physical disability (low back injury), began in 2005, and his mental disorder in 2011." However, the examiner then concluded that "after taking a psychiatric history and performing a mental status examination today, it is determined that [the] Veteran is able to obtain, perform and secure a part time employment," and stated that the Veteran's "service connected neuropsychiatric condition does not preclude him from fulfilling part time income." Since the examiner made contradictory statements that the Veteran could have a regular job but also said that he could perform only part-time employment because of his psychiatric condition, the Board remanded for an addendum opinion to get clarification from the examiner. Specifically, the Board asked that the examiner address: (a) does the Veteran's diagnosed psychiatric disorder(s) impact his ability to work; (b) if not, explain why the conclusion in the 2020 examination report was that the Veteran could only work part-time as a result of his psychiatric disorder(s). In the April 2023 Request for Physical Examination, the AOJ referenced those two specific questions that were asked by the Board. Subsequently, the Veteran was afforded a VA examination in April 2023 by the same examiner who conducted the October 2020 VA examination. However, the examiner only addressed the first question about whether the Veteran's diagnosed psychiatric disorder(s) impacted his ability to work. The examiner did not explain why the conclusion in the October 2020 examination report was that the Veteran could only work part-time as a result of his psychiatric disorder(s). In the January 2024 Board decision, the Board found that not answering one out of the two questions in the Board's remand directive was inadequate and was not in substantial compliance with the directive. As such, the Board found that a remand was necessary to get substantial compliance with the Board's remand directive from the March 2023 Board decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). As a result of the January 2024 Board remand, the AOJ obtained the February 2024 VA medical opinion. The AOJ asked for the examiner to comment on the effect of the Veteran's acquired psychiatric disorder on his ability to function in an occupational environment and describe any identified functional limitations. The examiner explained that the Veteran had a history of psychiatric complaints, findings, and treatment at VA since 2011. The examiner further explained that the Veteran had no history of hospitalization or emotional crisis. Additionally, the examiner stated that the Veteran's mental disorder had been mostly stable since 2011. Moreover, the examiner stated that the Veteran's mental disorder which began in 2011 was not related to his 2005 retirement. The examiner explained that the Veteran retired in 2005 after a traumatic fall and low back injury. Accordingly, the examiner opined that the Veteran's acquired psychiatric condition did not preclude him from fulfilling substantial income, as full-time or part-time job. The Board finds that the February 2024 VA medical opinion was inadequate and not responsive to the Board's previous remand directives. First, the examiner did not respond to the Board's directive of addressing why the conclusion in the October 2020 examination report was that the Veteran could only work part-time due to his psychiatric disorder(s). Second, the examiner did not provide any analysis beyond stating that the Veteran's acquired psychiatric disorder was stable, as to how that disorder affected his ability to function in an occupational environment. Third, the examiner was not given another opportunity to evaluate relevant VA treatment records that were associated with the record after the February 2024 private opinion and prior to the October 2024 SSOC. For example, VA treatment records suggest that the Veteran was experiencing memory problems, confusion, disorientation, and cognitive impairment. As a result, the Veteran's daughter had to assist him with activities of daily living. See August and September 2024 VA treatment records. Additionally, the Board notes that the same VA examiner rendered the October 2020, April 2023, and February 2024 VA opinions regarding the impact of the Veteran's ability to function in an occupational environment. Accordingly, the examiner has rendered three inadequate opinions and not been fully responsive to the Board's remand directives twice. Therefore, the Board will direct that another VA examiner provide the opinions requested below. Moreover, given that the Board is requesting another VA examiner and the Veteran's VA treatment records suggest a worsening of his acquired psychiatric disorder, the Board will also remand for another VA examination to evaluate the Veteran's acquired psychiatric disorder and its impact on the ability to work. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); August and September 2024 VA treatment records. Finally, the Board reminds the AOJ that the Veteran is service connected for other disabilities. Therefore, after the appropriate development, the AOJ may consider whether the Veteran's acquired psychiatric disorder in combination with other service-connected disabilities would entitle the Veteran to a TDIU rating. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician other than the October 2020, April 2023, and February 2024 VA examiner, regarding the current severity of his acquired psychiatric disorder. The examiner should elicit from the Veteran the complete educational, vocational, and employment history and should note any complaints regarding the impact of the acquired psychiatric disorder on employment. The examiner should identify all limitations or functional impairment caused solely by the acquired psychiatric disorder. The examiner should also address, to the extent possible, the conclusion in the October 2020 examination report that the Veteran could only work part-time as a result of his psychiatric disorder(s). The Board notes that the examiner may not use the Veteran's reason for retirement in 2005 as a basis for stating that his acquired psychiatric disorder does not currently cause functional impairment. In doing so, the examiner should also address the August and September 2024 VA treatment records which show that the Veteran was experiencing memory problems, confusion, disorientation, and cognitive impairment. The Veteran's daughter also had to assist him with activities of daily living. 2. Thereafter, readjudicate the remanded claim, taking into consideration all the Veteran's service-connected disabilities, not just the acquired psychiatric disorder. Wendy Daknis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brodbeck, Douglas E. 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.