Citation Nr: 1821619 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-16 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased disability rating for service-connected depressive disorder, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in October 2015 for further development. These claims were remanded so that the Veteran could testify at a hearing before the Board. The Veteran withdrew his request for a hearing by way of a February 2016 correspondence. The Board notes that updated VA treatment were submitted by the Veteran's attorney representative in March 2018 with a waiver of RO consideration. As such, the Board has considered these records as they have been associated with the Veteran's claims file. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Depressive disorder The Board notes that the most recent VA examination report is dated September 2009 (more than eight years ago). Indeed, while a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). The Board notes that the September 2009 VA examiner opined that the Veteran's depression was not related to service. The RO granted service connection for a depressive disorder notwithstanding the opinion of the VA examiner. Moreover, the VA examiner stated that the Veteran's "mental disorder symptoms are not severe enough to interfere with occupational and social functioning." She assigned a Global Assessment of Functioning (GAF) score of 70. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202, at *9 (Vet. App. Feb. 23, 2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was originally certified to the Board in September 2014 so it was pending before AOJ on August 4, 2014. As such, the DSM-5 applies and the GAF scores will not be considered in rating. However, the Board notes that much of the Veteran's treatment occurred when GAF scores were being used; and in this case, they indicate that the Veteran's depression has become more severe since the most recent VA examination. In this regard, the September 2009 VA examiner assigned a GAF score of 70 (indicating mild symptoms). Subsequent to the VA examination, the Veteran submitted a September 2009 correspondence from Dr. A.O.R. in which he states that the Veteran's mood disorder has been aggravated; and that his prognosis is poor (Medical Treatment Record - Non - Government Facility, 11/12/09). The RO, in its April 2014 statement of the case, noted that the current treatment records reflect a GAF of 60 (indicative of moderate symptoms). Finally, the Board notes that a January 2014 treatment report reflects a GAF score of 55 (Medical Treatment Record - Government Facility, 3/16/18, p. 57). Although DSM-5 no longer utilizes GAF scores, the Board recognizes that the decreasing scores reflect an increase in severity since the Veteran's most recent VA examination. Other evidence also indicates a worsening of symptoms. Indeed, at the 2009 VA examination, the Veteran had unremarkable speech, but the 2014 VA treatment record reflects slow speech and difficulty talking. Consequently, the Board finds that a new VA examination is warranted prior to adjudication on the merits. See 38 C.F.R. § 3.327(a) (2017) ("Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect."). Additionally, the Board notes that in September 2009, the Veteran completed a VA Form 21-4142 authorizing the release of Dr. A.O.R.'s medical records to the VA (VA 21-4142 Authorization for Release of Information, 10/14/09). The AOJ attempted to obtain these records (See VCAA/DTA letter, 1/7/10); but it does not appear that the records were located. Insofar as these records are likely relevant to the Veteran's claims, the Board finds that another attempt to locate these records should be made. The Veteran should be asked to submit another VA 21-4142 Authorization for Release of Information for these records as well as any other that he can identify. TDIU The Veteran's claim for a TDIU is dependent on whether the Veteran's service-connected disabilities, to include his psychiatric disability, render him unable to secure or follow a substantially gainful occupation. (See VA Forms 21-8940, 04/29/2010 (noting all service-connected disabilities) and 05/18/2010 (noting psychiatric/depression.)) As such, the claim is inextricably intertwined with the issue of whether an increased rating is warranted for the Veteran's service connected depressive disorder. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran complete a VA 21-4142 Authorization for Release of Information for any treatment records the Veteran wishes to have incorporated in to the claims file, specifically records from Dr. A.O.R. that were previously identified by the Veteran. 2. After associating any records with the claims file, schedule the Veteran for a VA psychiatric examination for the purpose of determining the current severity of his depressive disorder, to include the impact on his occupational and social functioning. The mental health examiner should review the claims file to become familiar with the Veteran's medical history. Any special tests deemed medically advisable should be conducted. Additionally, comment on the effect of the Veteran's service-connected psychiatric disability on his/her ability to function in an occupational environment and describe any identified functional limitations. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports are to be considered in formulating the requested opinion. 3. After completion of the above, then readjudicate the matters on appeal and determine if the benefits sought can be granted. If any benefit sought remains denied, then furnish the Veteran and his attorney representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant 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 2014). _________________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).