Citation Nr: 1316799 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 08-16 433A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an evaluation in excess of 30 percent for an adjustment disorder with depressed mood. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active service from September 1969 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) which, in pertinent part, established service connection for an adjustment disorder with depressed mood and assigned a 10 percent evaluation for that disability, and denied a total rating for compensation purposes based on individual unemployability (TDIU). In December 2010, the Board remanded these matters for further development. In August 2012, the Board increased the disability evaluation for the Veteran's adjustment disorder with depressed mood from 10 percent to 30 percent disabling; and remanded the claims for further development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Pursuant to the Board's August 2012 remand, the Veteran was afforded an examination for his service-connected psychiatric disorder in October 2012. In a statement received in February 2013, the Veteran, referencing the October 2012 examination, indicated that his "conditions are much worse" and noted that the examination report reflected a different person. He also stated that the medication he takes results in him walking around like a person in a coma. He indicated that the medication did what it was supposed to do but as a result he could not work around machinery or people. He also reported to the VA examiner that he felt he needed to sleep more when he took his antidepressant pills and would take a one to three hour nap in the afternoon. While the passage of time does not necessarily require that an updated VA examination be conducted, the Board notes that because the Veteran reports that medications taken contribute to an inability to work and this was not addressed by the examiner, another examination is warranted. Also, the Veteran reported that he was Baker Acted at Brandon Regional Hospital after an overdose in May 2009. As these records are relevant to his claim for an increased rating for the psychiatric disorder, the Veteran should be asked to provide or authorize the release of these records on remand. In addition, the record reflects that the Veteran has continued to receive treatment from the VA Medical Center. As this matter is being returned for additional development, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records relating to the Veteran's psychiatric disorder. 2. Request that the Veteran provide or authorize the release of records from Brandon Regional Hospital dated in 2009, and any other non-VA records, not already of record, that are relevant to his claims. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After the above development is complete, provide the Veteran with an examination, if possible, by a different VA psychologist or psychiatrist than who conducted the October 2012 examination. The examiner should report the current nature, extent, and severity of the Veteran's service-connected psychiatric disorder. The examiner should be provided with the claims folder for review and should indicate in the examination report that such review occurred. The rationale for all opinions must be provided. The examiner should describe the nature and severity of all symptoms of the Veteran's psychiatric disorder, taking into consideration the Veteran's descriptions of his behavior, and comment on their impact on his social and occupational functioning. All subjective symptoms and objective findings should be noted in the examination report. Both a multi-axial diagnosis and a Global Assessment of Functioning (GAF) score should be provided, with an explanation of what the GAF score represents. The examiner should reconcile the assigned GAF score with the GAF scores ranging from 50 to 55 assigned by the Veteran's treating VA psychiatrist. The examiner should also ascertain the impact of his service-connected acquired psychiatric disorder and his service-connected skin disorder on his unemployability. The examiner should consider the Veteran's education and employment history, as well as his own assertions that his acquired psychiatric disorder and his skin disorder prevent him from working. The VA examiner's opinion should specifically address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected psychiatric disorder and service-connected skin disorder, either singly or in combination, without consideration of any nonservice-connected disabilities and irrespective of his age, render him unable to secure or follow a substantially gainful occupation. In providing the opinion, the examiner should also address the impact of medication taken by the Veteran for his service-connected disabilities. The Veteran reports that the medication he takes results in him walking around like a person in a coma, that he needs to sleep more when he takes his antidepressant pills such that he would take a one to three hour nap in the afternoon and as a result he could not work around machinery or people. The examiner's attention is also directed to the Veteran's reports that he is allergic to chemicals used in computers. If an examination other than a psychiatric examination is necessary to provide the requested opinion, such an additional examination should be scheduled. 4. After the requested examination report(s) has (have) been completed, they should be reviewed to ensure that they are in complete compliance with the directives of this remand. The examination report(s) should be returned to the examiner(s) if deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions; undertake any other development action that is deemed warranted; and, based on all of the evidence of record, including all evidence associated with the claims file pursuant to this remand, readjudicate the issue of entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disorder and entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 claim must be afforded expeditious treatment. The law requires that all claims 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).