Citation Nr: A20007336 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 200305-68419 DATE: April 30, 2020 REMANDED Entitlement to an initial compensable evaluation for service-connected posttraumatic stress disorder (PTSD) with Major Depressive Disorder (MDD) from May 23, 2018, to November 18, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty service in the United States Navy from April 1958 to March 1962. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Controlling laws provide that every rating decision issued after February 2019 will be promulgated under the AMA. This matter comes before the Board of Veteran’s Appeals (Board) on appeal of a February 2020 AMA rating decision of a Department of Veteran’s Affairs (VA) Regional Office of the Veteran’s Benefits Administration, which is the Agency of Original Jurisdiction (AOJ). In March 2020, the Veteran elected to appeal this issue to the Board submitting a VA Form 10182 (AMA NOD) and selecting the direct review docket. Entitlement to an initial compensable evaluation for service-connected PTSD with MDD from May 23, 2018, to November 18, 2019 i. Characterization of the issue on appeal While the above includes an accurate description of the procedural history of the issue on appeal, the Board concludes that a brief recitation of pertinent facts is necessary to provide context and a backdrop for the reasons for remand that will be discussed below. On May 23, 2018, the AOJ received the Veteran’s initial claim to establish service connection for PTSD. In developing this claim, the AOJ provided the Veteran with a November 2018 VA psychiatric examination, and the examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD; however, a diagnosis unspecified sleep-wake disorder was rendered and opined to be due to the Veteran’s in-service stressor event. In a November 2018 rating decision, the AOJ established service connection for unspecified sleep-wake disorder and assigned a noncompensable (zero percent) initial evaluation, effective from May 23, 2018 – the date that the AOJ received the Veteran’s PTSD claim. The Board observes that nothing in the Narrative or Codesheet sections of the November 2018 rating decision reflects that the Veteran’s claim to establish service connection for PTSD was denied. In February 2019, the Veteran expressed disagreement with the initial evaluation assigned for this service-connected psychiatric disability and noted that his initial claim sought to establish service connection for PTSD. In November 2019, the Veteran submitted a VA Disability Benefits Questionnaire (DBQ) that was completed by a private psychologist and reflected a diagnosis of PTSD, but no other acquired psychiatric disability, including sleep-wake disorder. To reconcile this competing medical evidence, the Veteran was provided a January 2020 VA psychiatric examination, and the examiner opined that the Veteran’s psychiatric symptoms were due to PTSD and MDD, and a diagnosis of sleep-wake disorder was ruled out. On February 10, 2020, the AOJ issued a rating decision and Statement of the Case (SOC) which attempted to readjudicate the Veteran’s appeal in light of this new evidence. Due to inconsistencies within these adjudicative documents, the Board will address them separately in an effort for clarity. In the February 2020 rating decision that made no mention of the AMA, it appears that the AOJ attempted to recharacterized the Veteran’s service-connected psychiatric disability from sleep-wake disorder to PTSD and MDD for the entirety of the appeal period (since May 23, 2018), and the assigned noncompensable evaluation was increased to 50 percent, effective from November 19, 2019 – the date of the VA psychiatric DBQ completed by the private psychologist. For reasons that are not explained in the rating decision, the AOJ favored the portion of the private November 2019 DBQ concerning the diagnoses of the Veteran’s service-connected psychiatric disabilities (PTSD and MDD instead of sleep-wake disorder), but not the severity of the manifestations of such or the resulting functional impairment. The above actions resulted in a recharacterization of the Veteran’s service-connected psychiatric disability, a partial grant of the benefits sought, and the creation of a “staged” initial evaluation. AB v. Brown, 6 Vet. App. 35, 38-39 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). The AOJ also issued an SOC to the Veteran on March 10, 2010, which denied (1) entitlement to a compensable initial evaluation for service-connected sleep-wake disorder from May 23, 2018, to November 18, 2019, and (2) entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD with MDD from November 19, 2019, to the present. The Board observes that the AOJ’s characterization of the Veteran’s service-connected psychiatric disability in the SOC for the period from May 23, 2018, to November 18, 2019, is inconsistent with the concurrent rating decision that recharacterized such throughout the entire appeal period. In sum, the SOC considers whether an increased initial evaluation is warranted for a disability that the Codesheet section of the concurrent rating decision reflects is not service-connected. In his March 2020 AMA NOD the Veteran expressed disagreement with the effective date assigned of the increased initial evaluation for his service-connected psychiatric disability. Although the Veteran stated that he was seeking an effective date of May 23, 2019, for the assignment of this 50 percent initial evaluation, the Board assumes that this is a typographical error, and the Veteran is seeking these benefits from May 23, 2018 – which is the effective date for the grant of service connection for sleep-wake disorder, which was later recharacterized as PTSD with MDD. While the Board notes that the Veteran framed the appealed issue as one seeking an earlier effective date for the increased initial evaluation, the effect is the same as seeking a compensable evaluation for the earlier “stage” that was created by the AOJ’s partial allowance. The Board also observes that the appeal period for the March 2020 SOC remains open and pending; meaning that the Veteran may continue pursuing the benefits readjudicated, therein, under the AMA or VA’s “legacy” system. To the extent that the issue of entitlement to an initial compensable evaluation for service-connected sleep-wake disorder from May 23, 2018, to November 19, 2019, that was adjudicated in the March 2020 SOC is essentially duplicative of the issue currently before the Board under the AMA, it is unclear whether the Board’s current appellate consideration of this issue under will usurp the Veteran’s future ability and/or right to appeal the same issue that is characterized in a different way under the AMA or VA’s “legacy” system. ii. Reason for remand As an initial matter, the Board notes that the November 2019 psychiatric DBQ completed by a private psychologist alludes to the Veteran’s participation in psychiatric counseling with private clinician. Despite receiving notice of this reasonably identified, pertinent, and outstanding medical evidence, the AOJ took no steps to seek and/or obtain such prior to readjudicating the appealed issue in the March 2020 rating decision. This represents a pre-decisional error in the duty to assist that must be corrected on remand. Downstream from the AOJ’s procedural actions and recharacterization of the Veteran’s appeal, described above, is a situation where the Board is asked to evaluate the Veteran’s service-connected PTSD with MDD for a time period which is devoid of diagnoses of these disabilities. In such cases, the United States Court of Appeals for Veteran’s Claims (the Court) has held that it is proper to obtain a retrospective medical opinion. Chotta v. Peake, 22 Vet. App. 80 (2008). Below, the Board will explain (1) the inadequacy of the medical evidence of record for this time period, (2) the AOJ’s pre-decisional errors in the duty to assist, and (3) the need to obtain retrospective medical opinions to correct such. The Board observes that the November 2018 VA examination report is devoid of any medical evidence concerning the functional and social impairment stemming from the Veteran’s service-connected psychiatric disability, as per VA’s Rating Schedule. It is unclear how the AOJ was able to evaluate the Veteran’s disability with this incomplete evidence, but the Board cannot do so under the controlling laws. As such, the November 2018 VA examination, which is the only evidence of record discussing the Veteran’s psychiatric symptoms during the time period under consideration, is inadequate. The AOJ’s failure to obtain a retrospective VA psychiatric examination to correct this deficiency represents a pre-decisional error in the duty to assist that must be corrected on remand. Further, while the January 2020 VA examiner noted that the Veteran’s psychiatric symptoms met the criteria for a diagnosis of PTSD and MDD at that time, the opinion was not retrospective in nature. In other words, the January 2020 VA examiner did not go so far as to state that the November 2018 VA examiner erred in ruling out a diagnosis of PTSD and/or MDD and, instead, providing a diagnosis of sleep-wake disorder. Given this, it is unclear why the Veteran’s service-connected psychiatric disability was recharacterized throughout the entirety of the appeal period. As such, the January 2020 VA opinion is inadequate for the purpose of adjudicating the Veteran’s appeal, and the AOJ’s reliance on this inadequate opinion represents a pre-decisional error in the duty to assist that must be corrected on remand. Lastly, the Board finds that it was a pre-decisional error in the duty to assist for the AOJ to not have requested from the Veteran the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who treated him for his PTSD with MDD from May 23, 2018, to November 18, 2019, because without these records the Board will be unable to reconcile the conflicting information found in the above VA examinations as well as the weigh the credibility of the retroactive medical opinion being ordered below. The matters are REMANDED for the following actions: 1. In order to correct a pre-decisional error in the duty to assist, the AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for his psychiatric disabilities. *The Board is particularly interested in the counseling records alluded to in the November 2019 VA psychiatric DBQ completed by the private psychologist. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 2. In order to correct a pre-decisional error in the duty to assist, the AOJ must thereafter transfer the Veteran’s complete electronic file to an appropriate VA clinician to retrospectively determine the nature of his service-connected psychiatric disabilities, severity of the manifestations of such, and social and occupational impairment resulting from such from May 23, 2018, to November 18, 2019. After a review of the complete record, the VA clinician is requested to complete a VA DBQ for acquired psychiatric disorders retrospectively for the period from May 23, 2018, to November 18, 2019. *In completing the above, the VA examiner must retrospectively determine all of the acquired psychiatric disabilities, the frequency and severity of the manifestations of such, and the social and occupational impairment resulting from such, from May 23, 2018, to November 18, 2019, only. (Continued on the next page)   All findings must be accompanied by complete rationale, to include reconciling such with the evidence of record. To this point, the examiner must discuss (1) the November 2018 VA examiner’s diagnosis of sleep-wake disorder, to include whether such was rendered in error, and (2) if there is any explanation (intervening event, etc.) to explain the broad disparity between the November 2018 VA examiner’s opinion ruling out a diagnosis of PTSD and the November 2019 DBQ showing the private psychologist’s findings that the Veteran had PTSD that resulted in total impairment. *If the examiner determines that an in-person VA psychiatric examination is necessary to address the above matters, such should be scheduled, and the Veteran must be notified of the time and place to report. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.