Citation Nr: 21002502 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 12-30 356 DATE: January 13, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent prior to September 4, 2016 and in excess of 70 percent thereafter for depression not otherwise specified (NOS) with panic disorder with agoraphobia and alcohol dependence in early partial remission is remanded. Entitlement to a compensable initial rating for thoracolumbar strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 4, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2006 to December 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran presented testimony at a virtual hearing before the undersigned Veteran Law Judge. A transcript of that hearing is associated with the record. A September 2016 rating decision granted the claim for TDIU, effective September 4, 2016. However, because the issue of entitlement to a TDIU is part of the Veteran’s increased rating claims on appeal here (Rice v. Shinseki, 22 Vet. App. 447 (2009)), the Board finds that the TDIU award represented only a partial grant of the benefits of sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Rice, 22 Vet. App. at 453. Accordingly, the issue of entitlement to a TDIU during the appeal period prior September 4, 2016 is currently in appellate status. 1. Entitlement to an initial rating in excess of 50 percent prior to September 4, 2016 and in excess of 70 percent thereafter for depression NOS with panic disorder with agoraphobia and alcohol dependence in early partial remission is remanded. 2. Entitlement to a compensable initial rating for thoracolumbar strain is remanded. During the November 2020 Board hearing, the Veteran testified that the symptoms of his service-connected psychiatric disability had worsened since his last VA examinations in 2016. He stated that he attempted suicide about a year before and had been receiving psychiatric counseling from the Yume clinic since that time. With respect to the thoracolumbar disability, the Veteran was last provided a VA general medical examination in January 2009, which included examination for his thoracolumbar spine disability. Since that time, the Veteran testified that he had seen by chiropractic and pain clinics at the Omoromachi Medical Center. VA’s duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, more contemporaneous VA examinations are required to provide a current picture of the Veteran’s service-connected disabilities at issue on appeal. 38 C.F.R. §§ 3.326, 3.327. Upon remand, the agency of original jurisdiction (AOJ) must make efforts to obtain any private treatment records that may be outstanding relating to depression and thoracolumbar strain. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (noting that VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record.). 3. Entitlement to a TDIU prior to September 4, 2016 is remanded. The claim for a TDIU is inextricably intertwined with the other issues on appeal. See 38 C.F.R. § 19.31 (2019); Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, the increased rating issues must be adjudicated by the AOJ prior to the adjudication of entitlement to TDIU benefits. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following actions: 1. Request that the Veteran identify all non-VA medical providers who have treated him for depression and thoracolumbar strain since 2008. Then obtain copies of any identified medical records that are not already in the claims folder. In particular, the Board is interested in obtaining the Veteran’s psychiatric counseling records from the Yume clinic in Okinawa, Japan and the records from the chiropractic and pain clinics at the Omoromachi Medical Center. All attempts to secure this evidence must be documented in the claims file by the AOJ. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; and (c) describe any further action to be taken by the AOJ with respect to the claim, and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected depression NOS with panic disorder with agoraphobia and alcohol dependence in early partial remission. The claims file must be provided to the examiner in conjunction with the examination. After a review of the evidence of record, the examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms attributable to the service-connected depression not otherwise specified (NOS) with panic disorder with agoraphobia and alcohol dependence in early partial remission, to include the frequency and severity, with consideration of the statements of the Veteran. The examiner must address the Veteran’s psychological, social, and occupational functioning The opinion must be based on the review of the claims file, and a complete rationale must be provided for any opinions expressed. 3. Schedule the Veteran for appropriate VA examination to determine the current nature of Veteran’s service-connected thoracolumbar strain. The claims file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the cervical spine. If pain is noted on range-of-motion testing. The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use over time. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use over time. Where the examination does not occur during a flare-up, based upon the evidence of record, and the information elicited on examination, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up limitation of forward flexion is limited to greater than 60 degrees but not greater than 85 degrees (the measurement required for the next higher rating), and/or the combined range of motion of the thoracolumbar spine is not greater than 170 degrees. If limitation of forward flexion is limited to less than 60 degrees, or combined range of the motion of the thoracolumbar spine is not greater than 170 degrees, estimate the additional degree of motion loss. If the examiner cannot provide the above-requested estimates based on the information provided by the Veteran and the contemporaneous medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such an estimate would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal taking into consideration any newly acquired evidence. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.