Citation Nr: 18159858 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 09-47 950 DATE: December 21, 2018 REMANDED Entitlement to an increased rating for major depressive disorder, recurrent with panic disorder without agoraphobia, claimed as panic attacks, depression, and sleep disturbance (hereinafter acquired psychiatric disorder), currently evaluated as 50 percent disabling prior to November 23, 2016, and 70 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 2002 to December 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision which granted service connection for an acquired psychiatric disorder and assigned a 10 percent disability rating effective February 14, 2008. In a January 2016 rating decision, the RO granted an increased rating of 30 percent for the service-connected acquired psychiatric disorder, effective from January 19, 2016. In a May 2017 rating decision, the RO granted an increased rating of 70 percent for the Veteran’s acquired psychiatric disorder, effective from November 23, 2016. In September 2016, the Board remanded the Veteran’s claim for additional development. In September 2017, the Board issued a decision which, in pertinent part, granted a disability rating of 50 percent for the appeal period prior to November 23, 2016, and denied a disability rating in excess of 70 percent thereafter for the Veteran’s acquired psychiatric disorder. The Veteran appealed the Board’s September 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR) filed by counsel for both parties, vacating the portion of the Board’s September 2017 decision which denied the Veteran’s claim of entitlement to a disability rating in excess of 50 percent prior to November 23, 2016, and a disability rating in excess of 70 percent for the period from November 23, 2016 for a psychiatric disability, and remanding the matter to the Board for compliance with the Joint Motion. Entitlement to an increased rating for an acquired psychiatric disorder. In the July 2018 JMPR, the parties noted that the Board remanded the Veteran’s claim in September 2016 in order to schedule her for a VA examination. The Board’s remand instructions stated that the examiner must note the presence or absence of each symptom listed in the rating schedule for ratings of 30 percent or above. Following the Board’s remand, the Veteran was provided with an additional examination in November 2016. In the JMPR, the parties noted that the examiner did not did not comment on the presence or absence of each symptom listed in the rating schedule criteria for ratings of 30 percent or above. Remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted. Furthermore, it is not clear whether the examiner was provided options as to the Veteran’s level of social and occupational impairment as there is one only one level of impairment listed within the section asking the examiner to opine as to the Veteran’s level of occupational and social impairment. Therefore, a remand is necessary to clarify the Veteran’s level of occupational and social impairment. The matter is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination to assess the current severity of her service-connected psychiatric disability. The Veteran’s entire record must be reviewed by the examiner in connection with the examination. Based on examination/interview of the Veteran and review of her record, the examiner should: Identify each symptom of the Veteran’s service-connected psychiatric disability (major depressive disorder with panic disorder without agoraphobia), noting their frequency and severity. The examiner must specifically note the presence or absence of each symptom listed in the rating schedule criteria for ratings of 30 percent or above (and any other symptom of similar gravity). Opine whether any psychiatric symptoms found (and their related occupational/social impairment) are attributable solely to other co-existing (and nonservice-connected) psychiatric disabilities. If so, the examiner must identify such symptoms and the associated impairment of function, and explain the medical basis for dissociating the symptom(s) from the Veteran’s service-connected disability. The examiner must also specifically comment on the nature and extent of occupational and social impairment that is due to the service-connected psychiatric disability. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Davis, Associate Counsel