Citation Nr: 1761185
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 06-18 500 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming

THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

The Veteran represented by: John S. Berry, Jr., Attorney at Law

ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1989 to August 1997.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for an acquired psychiatric disorder, and from an April 2010 rating decision of the RO in Cheyenne, Wyoming, which granted the Veteran’s claim for entitlement to service connection for dysthymic disorder and alcohol dependence, awarding a 50 percent disability rating effective September 22, 2005, a temporary 100 percent disability rating due to hospitalization over 21 days effective May 9, 2007 through June 31, 2007, a 50 percent disability rating effective July 1, 2007 through February 23, 2009, and a 10 percent disability rating effective from February 24, 2009. The Veteran submitted a timely Notice of Disagreement with the evaluations assigned. The Cheyenne, Wyoming RO currently has jurisdiction over this matter.

In an October 2012 rating decision, the Cheyenne RO increased the evaluation for dysthymic disorder, late onset, and alcohol dependence to 70 percent, effective October 25, 2011. However, as the increase did not constitute a full grant of the benefits sought, the Veteran’s claim for an increased disability rating remained in appellate status for the entire appeal period. See AB v. Brown, 6 Vet. App. 35, 38- 39 (1993).

In an April 2014 decision, the Board found that an initial rating in excess of 50 percent for dysthymic disorder and alcohol dependence prior to January 30, 2009, was not warranted, but found that a 70 percent evaluation was warranted since January 30, 2009, subject to the law and regulations governing payment of monetary benefits. The Cheyenne RO implemented this award in a May 2014 rating decision.

Also in the April 2014 decision, the Board found that the issue of entitlement to a TDIU had not been raised by the record. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and in a July 2015 order, the Court issued a Memorandum Decision partially upholding the Board’s decision, but vacating the portion of the Board’s decision regarding entitlement to a TDIU. The case was returned to the Board for compliance with the Memorandum Decision.

This matter was before the Board in February 2016, at which time the Board remanded for further development. The Board finds that further development is necessary before final adjudication. Therefore, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.

REMAND

The Board finds that further development is needed before final adjudication of the Veteran’s appeal. First, the Board finds that the Veteran is entitled to a new examination regarding the effect of his dysthymic disorder and alcohol dependence on his occupational functioning. The Veteran was afforded a VA examination in March 2017, while he was incarcerated. The examiner noted no significant impairment from Persistent Depressive Disorder and Alcohol Use Disorder due to the Veteran’s forced sobriety while in prison. Because of this, the examiner observed no barrier to his employability, but noted that there was no way to quantify with any degree of confidence what problems the Veteran would have in the future. Specifically, the examiner noted that if the Veteran resumed drinking at problematic levels after he is paroled, he may have severe problems getting and keeping a job because of his Alcohol Use Disorder. However, if he is able to maintain his sobriety, he may not have any problems getting and keeping a job. Because of this, the examiner opined that another evaluation for employability may be needed after the Veteran is paroled. The Board notes that in November 2017, VA received a returned mailing from the correction facility indicating that the Veteran was no longer located there. It is possible that the Veteran is no longer incarcerated and, therefore, the Board finds that a new examination is needed to accurately determine his employability.

In addition, the Board finds that additional records should be obtained. On his Application for Increased Compensation Based on Unemployability, received by VA in March 2016, the Veteran indicated that he last worked full-time in July – December 2008. (The Board notes that this is different from his previously filed December 2015 Application, in which he indicated that he last worked full-time in 2011). He also indicated that his disability affected his full-time employment beginning in August 2008. However, there no indication who the Veteran’s employer was at that time. There is also a notation that he was, at one point, employed by a railway company. The Board will remand to obtain additional employment information.

Further, regarding records, during the March 2017 VA examination, the examiner noted that the correctional facility did not make available the Veteran’s prison records to aid in assessing the Veteran’s level of functioning. The Board will remand to attempt to obtain these records.

Finally, the claim file contains correspondence from the Veteran’s attorney, dated November 17, 2016, that appears to have been improperly scanned into the record. The Board will remand to obtain a complete copy of the letter for the file.

Accordingly, the appeal is REMANDED for the following action:

1. Contact the Veteran or his attorney, as appropriate, to obtain the following:

(a) The Veteran’s current address and contact information and determine whether the Veteran is presently incarcerated.

(b) A copy of the November 17, 2016 correspondence that appears to have been improperly scanned into the claim file. Ensure a complete copy of the correspondence is added to the claim file.

(c) The necessary consent to contact the correctional facility where the Veteran was incarcerated and obtain the relevant inmate prison records to aid a VA examiner in determining the Veteran’s level of functioning.

(d) The necessary consent and clarification regarding the Veteran’s last full-time employer (now indicated to be from July – December 2008) and information regarding his prior railway employer. (Note: The Board is not using the full name of the employer to protect the identity of the Veteran. In all correspondence to the Veteran, the full name should be used in order to aid him in responding to the request.)

The AOJ should obtain the following information about the Veteran’s former employment: the dates of employment, his job duties, hours worked per week, monthly income, and the company(ies) name(s) and address(es). For any employers identified by the Veteran, from whom VA has not received a VA Form 21-4192, send a VA Form 21-4192 to obtain relevant information regarding the Veteran’s past employment.

All attempts to obtain the above should be documented. If any information could not be obtained, this should be noted in the claim file.

2. After completing the above, schedule the Veteran for an appropriate VA examination regarding his TDIU claim. The claim folder must be made available to the examiner, including all relevant documents obtained as a result of this remand. Review of the claim folder should be noted in the examiner’s report.

The examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disability (i.e., dysthymic disorder, late onset, and alcohol dependence) and opine as to the impact of the service-connected disability on his ability to secure and follow a substantially gainful occupation, with consideration of his level of education, prior work experience, and/or prior training.

A complete rationale for all opinions should be provided.

If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

_________________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).

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