Citation Nr: 18139947 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-03 958 DATE: October 1, 2018 REMANDED The claim of entitlement to an evaluation in excess of 30 percent between January 16, 2010, and November 7, 2015, for a service-connected depressive disorder is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from January 2009 to June 2009. In the Veteran’s January 2016 Substantive Appeal, she indicated that she only wanted to appeal the issue of her evaluation for service-connected depressive disorder. She stated that she agreed with the 70 percent evaluation granted in conjunction with the December 2015 Statement of the Case, but believed she was entitled to a 70 percent evaluation throughout the period on appeal. The initial grant of service connection and a 30 percent evaluation for depressive disorder occurred in an October 2009 rating decision. The Veteran did not express disagreement with that evaluation within one year of the rating decision, and thus it became final. Accordingly, the issue has been narrowed as reflected above. The claim of entitlement to an evaluation in excess of 30 percent between January 16, 2010, and November 7, 2015, is remanded. The Board cannot make a fully informed decision on the issue of entitlement to an evaluation in excess of 30 percent throughout the period on appeal as the medical evidence of record presents a conflicting picture of the nature and severity of the Veteran’s mental health diagnoses. The initial April 2009 VA examination that diagnosed the Veteran with a depressive disorder related to her service-connected disabilities found that the Veteran experienced symptoms of depression, chronic sleep impairment and irritability. She was assessed with mild symptoms overall, and afforded an initial 30 percent evaluation. In February 2011, the Veteran sought treatment from VA related to her mental health diagnosis. In the intake, the Veteran’s symptoms included: sad mood, dysphoria, frustration, low energy, difficulty sleeping, and reduced appetite. She was diagnosed with an adjustment disorder. In an April 2011 VA examination, was diagnosed with a mood disorder with depression and anxiety, as well as alcohol abuse. The symptoms reported between the initial intake in February 2011 and the examination in April 2011 stand in stark contrast to one another. Just two months after her initial intake, she reported physical violence with another person, no friends, alcohol abuse, poor performance in school, and ongoing thoughts of suicide. The Veteran engaged in more VA treatment beginning in May 2011, during which she predominantly denied suicidal ideation or passive thoughts of suicide. She reported that her depression and anxiety caused her to self-medicate with alcohol. The Veteran reported a range of stressors for her behavior, including a custody battle with her ex-husband, and her mother’s cancer diagnosis. There is limited reference to pain or limitations caused by her service-connected physical disabilities. Treatment records around September 2011 indicate that the Veteran’s stressors continued to focus on her father, ex-boyfriend and ex-husband. Treatment records note that she had a present diagnosis of posttraumatic stress disorder (PTSD) in October 2011. The Veteran attended a 30-day in-patient alcohol abuse program in April 2012, and she maintained her sobriety following discharge. Through the course of the program, she expressed resentment against her father for his behavior during her childhood and frustrations with her boyfriend. She revealed a history of domestic violence in past relationships. She continued to deny suicidal and homicidal ideation. In July 2012, the Veteran’s diagnoses were noted as alcohol abuse in early remission and adjustment disorder. In October 2012, her diagnoses were alcohol dependence in early remission and bereavement. In March 2013, the Veteran’s diagnosis was alcohol dependence in full, sustained remission. She was getting married within a week, and expressed excitement to begin this new phase of her life. The Veteran reported obsessive compulsive behaviors that challenged her ability to unclutter her home. She was mildly anxious, and denied suicidal and homicidal ideation. In April 2013, treatment records note a diagnosis of major depressive disorder, but improvement in her mood and behaviors, as well as continued sobriety. She reported a tendency to hoard things, and stated that her therapist believed her to have obsessive compulsive disorder. In December 2014, VA treatment records reflect continued sobriety with stressors including an ongoing custody dispute with her ex-husband and the death of her mother. She endorsed periodic depression, anxiety, anger and frustration. She denied suicidal ideation, but noted that she experienced it in the past. She was diagnosed with alcohol use disorder in full, sustained remission, and adjustment disorder. Throughout group therapy sessions, she did not report suicidal or homicidal ideation. In February 2015, the Veteran’s primary stressor was reported as her husband’s behavior, including compulsive gambling, as well as her mother’s passing. There was no mention of her service-connected physical disabilities. In June 2015, her depression and anxiety were noted to be mild in nature, and she had given birth to a daughter approximately two months prior. She denied suicidal or homicidal ideation. In a November 2015 Disability Benefits Questionnaire (DBQ), a private clinician diagnosed the Veteran with major depressive disorder and alcohol dependence in remission. The Veteran reportedly could not function due to pain in her feet, and was unable to go to school functions due to her depression. The Veteran reported problems doing simple tasks, and attending to her hygiene. She reported panic issues that caused her to fall to the ground in her last class in college. She had not worked for three years. The clinician reported the Veteran’s symptoms as: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal, impaired impulse control, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, and disorientation as to time or place. In December 2015, VA treatment records report that the Veteran experienced a depressed mood with constricted affect, poor motivation and poor self-image. She denied suicidal ideation, which was supported by her future orientation and strong attachment to her children. She had a family trip to Disneyland that went well, and she was planning a Christmas party in her home. She was also working on a fundraiser with her husband for their children’s school. Her thoughts were linear and sequential, and there was no indication of hallucinations. Her judgment and cognition were intact. The Veteran was diagnosed with PTSD and alcohol use disorder. In January 2016, the Veteran met with the VA chaplain, and was noted to be doing well and was happy. Concurrent group therapy records reflect that the Veteran did not report or present evidence of suicidal ideation or homicidal ideation during treatment. Given the significant discrepancy between symptoms reported through the course of her VA treatment and the November 2015 DBQ, further clarification is required regarding the nature and severity of the Veteran’s service-connected depressive disorder through the period on appeal. Additionally, indications of other diagnoses, including PTSD, related to childhood experiences and previous abusive relationships, complicate the Veteran’s mental health history. Accordingly, a retrospective opinion is necessary on remand in order to determine the nature and severity of the Veteran’s service-connected psychiatric disorder. The matter is REMANDED for the following action: 1. Contact the Veteran and her representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and her representative, and afford an opportunity for her to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. After the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the present nature and severity of her service-connected depressive disorder. A complete copy of the claims file must be made available to the examiner. After a thorough review of the medical and lay evidence of record, with particular attention to the November 2015 DBQ, the examiner should discuss the following: (a.) Clarify the Veteran’s psychiatric diagnoses throughout the period on appeal; (b.) For each diagnosis, determine if it is a progression or worsening of the Veteran’s initial service-connected depressive disorder; (c.) Provide a retrospective opinion of the severity of the Veteran’s service-connected acquired psychiatric disorder between January 2010 and November 2015. The examiner should also provide an assessment of the Veteran’s occupational impairment in this period of time – aka - what degree of functional impairment stemmed from her psychiatric condition. Include discussion of the November 2015 DBQ, as well as competing diagnoses listed throughout the Veteran’s VA treatment records. Differentiate symptoms attributable to other diagnoses, if possible. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel