Citation Nr: 20056834 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 17-27 992 DATE: August 27, 2020 REMANDED Entitlement to a disability rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood is remanded. Entitlement to a total disability rating due to individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 to December 1991. This matter is on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the March 2019 decision, the Board denied entitlement to a disability rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the Board’s decision with regard to the denial of increased ratings for CFS and remand the case to the Board for additional development. The JMPR was incorporated by reference in a Court order dated in August 2020. A claim for a TDIU rating is considered part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds that the Veteran’s TDIU claim is part and parcel of the increased rating claim on appeal, and is properly before the Board. Thus, the TDIU claim is reflected on the title page. 1. Entitlement to a disability rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood is remanded. The Veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). The Veteran’s most recent VA examination was conducted in November 2015, almost five years ago, and the evidence indicates that his disability has worsened in severity. The record indicates that a VA examination for the Veteran’s psychiatric disability was scheduled for June 2017. A review of the claims file indicates that neither the Veteran nor his representative of record were provided with notice of the scheduled VA examination. There is a note in the Veteran’s file, however, that states his appointment was cancelled because the Veteran was unavailable. The August 2017 Supplemental Statement of the Case (SSOC) suggests that the Veteran was notified of instructions to reschedule his examination in June 2017. Specifically, evidence listed in the SSOC included June 2017 VA healthcare system records documenting attempts to contact the Veteran instructing him to call to reschedule his examination. However, there is no evidence of these rescheduling notifications in the claims file. In fact, there are no VA treatment records in the Veteran’s claims file after December 2016. As such, remand is warranted to associate any outstanding VA treatment records with the Veteran’s claims file and to reschedule the Veteran for a VA examination to determine the current manifestations of his adjustment disorder with mixed anxiety and depressed mood. 2. Entitlement to a total disability rating due to individual unemployability due to service-connected disability (TDIU) is remanded. The issue of entitlement to TDIU has been raised by the record; see Rice v. Shinseki, 22 Vet. App 447 (2009). The Board notes that the Veteran has not filed an application for TDIU. However, the Veteran has stated that he is unemployed, was fired from his previous positions, could not get hired because of his irritability and difficulty getting along with coworkers, and that he had significant aggravation of his adjustment disorder while performing his job requirements. See September 2015 VA treatment record and November 2015 VA examination; see also May 2017 VA Form 9. The Veteran’s claim for entitlement to TDIU is inextricably intertwined with the Veteran’s claim for an increased initial disability rating for adjustment disorder with mixed anxiety and depressed mood and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records. All records/responses received must be associated with the electronic claims file. 2. Then, schedule the Veteran for a new VA examination to determine the current severity of his service-connected adjustment disorder with mixed anxiety and depressed mood. The claims folder, including a copy of this remand, should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. The examiner should specifically provide the following: (a.) The examiner should identify the existence and severity of all current manifestations of the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood. (b.) The examiner should describe the impact of the Veteran’s adjustment disorder with mixed anxiety and depressed mood on his occupational and social functioning. The examiner should also comment on functional impairment caused by the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s reports, the examiner should provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Ensure that all notice and assistance obligations are satisfied concerning the claim for a TDIU. Forward the appropriate form (VA Form 21-8940) to the Veteran for completion, and undertake any development necessary for this claim. 4. After completing the above actions, as well as any other development that may be warranted, readjudicate the Veteran’s claims including the TDIU claim in light of all the evidence of record. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.