Citation Nr: 1803095 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-18 683A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial disability rating greater than 30 percent for service-connected depression, associated with adhesive capsulitis of the right shoulder with history of recurrent dislocation, prior to July 16, 2014, and greater than 50 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from August 1995 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Baltimore, Maryland, that denied entitlement to service connection for depression. In a March 2011 rating decision, the RO granted entitlement to service connection for depression at a 30 percent disability rating, effective August 23, 2010. In an August 2011 rating decision, the RO increased the Veteran's disability rating for depression to 50 percent, effective July 16, 2014. The Veteran has not indicated that he is satisfied with these ratings. Thus, the claim is still before the Board. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In July 2012, the Veteran testified at a Board hearing over which the undersigned presided in Washington, DC. A transcript of that hearing has been associated with the claims file. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (West 2012); 38 C.F.R. § 3.159(c), (d) (2017). As an initial matter, the most recent VA medical records reflecting ongoing medical treatment are dated in 2010. The Veteran should be given an opportunity to identify any private or VA treatment he has received for his service-connected psychiatric disability since 2010. The AOJ should take the necessary steps to obtain any identified records and add them to the record. 38 C.F.R. § 3.159 (c) (2017). In a December 2017 Appellant's Post-Remand Brief, the Veteran's representative noted that most-recent VA examination addressing the severity of the service-connected depression was in July 2014, over 40 months ago. His representative requested a new examination to determine the severity of his service-connected depression if the Board was unable to grant an increased disability rating for depressive disorder. Where a Veteran asserts that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet.App. 400, 403 (1997); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43, 186 (1995). As such, the Board finds that, on remand, the Veteran be provided with a new VA examination to determine the current nature and severity of his service-connected depression. As the issue of entitlement to a TDIU is inextricably intertwined with the outcome of the Veteran's claim for an increased disability rating, it must be deferred pending resolution of the claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ shall afford the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to the remanded claim. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from 2010 to the present, must be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts shall be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ shall issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. The AOJ shall afford the Veteran a VA mental disorders examination with an appropriate psychiatrist so as to determine the precise nature and severity of his service-connected depression. The claims file and a copy of this remand must be made available to the examiner for review in conjunction with the examination. The report of examination must include a detailed account of all manifestations of psychiatric pathology found to be present. All necessary and indicated special studies or tests must be accomplished. The examiner shall provide an assessment of social and occupational functioning. The examiner must review and address all of the private medical and lay evidence of record and reconcile any opinions that may be inconsistent with the findings of the examination. The examiner is also advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any examination results. The examiner shall also state whether the Veteran's service-connected depression prevents him from securing or following substantially gainful employment. A complete rationale for all opinions expressed shall be provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. The AOJ will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).