Citation Nr: 21004866 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-24 457 DATE: January 28, 2021 REMANDED Entitlement to an initial disability rating higher than 30 percent for depression is remanded. Entitlement to an initial disability rating higher than 10 percent for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran served on active duty from December 1984 to February 1996, and from February 2003 to January 2004, with additional service in the National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 decision, the Board denied the Veteran’s claims for increased initial ratings for his service-connected depression and hypertension. The Board also denied service connection for posttraumatic stress disorder (PTSD) and bilateral hearing loss. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court), and in an August 2018 Order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR) and remanded the Veteran’s claims for increased initial ratings for depression and hypertension to the Board for action consistent with the terms of the joint motion. See July 2018 JMPR (vacating the January 2018 Board decision denying entitlement to an initial rating greater than 30 percent for depression and an initial rating greater than 10 percent for hypertension, and dismissing the appeal as to the issues of entitlement to service connection for PTSD and bilateral hearing loss). Additionally, the parties also agreed that the record showed the Veteran had perfected an appeal as to the issues of entitlement to earlier effective dates for the awards of service connection for depression and hypertension. The parties thus agreed that the Board should address these issues on the merits on remand. In a March 2019 decision, the Board granted an earlier effective date of September 28, 2012 for the awards of service connection for depression and hypertension. See March 2019 Board Decision. As to the claims for increased initial ratings for these conditions, the Board remanded these issues to the Agency of Original Jurisdiction (AOJ) for additional development, to include obtaining outstanding VA and private treatment records identified by the Veteran. Id. That development having been completed to the extent possible, the case has returned to the Board. Finally, the Board finds that the issue of entitlement to total disability based on individual unemployability (TDIU) has been raised by the medical evidence of record suggesting that the Veteran’s service-connected depression has contributed to his unemployment. See, e.g., April 2018 Psychiatric Evaluation from E.J.P.A., M.D. (noting that the Veteran’s psychiatric disability affects his job performance); February 2020 VA Psychiatric Progress Note (reflecting that the Veteran is “currently unemployed”); March 2020 VA Psychiatric Progress Note (relating the Veteran’s “passive death wishes” to his current unemployment). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the Board finds that the issue of entitlement to a TDIU has been raised and that the Board has jurisdiction over such issue as part and parcel of the Veteran’s increased rating claim. 1. Entitlement to an initial disability rating higher than 30 percent for depression is remanded. 2. Entitlement to an initial disability rating higher than 10 percent for hypertension is remanded. Unfortunately, additional development is necessary before the Board can adjudicate these matters. While the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Veteran was last provided VA examinations for his service-connected psychiatric disability and hypertension in April 2017. In recent submissions, the Veteran and his representative indicated that the conditions have increased in severity in the years since those examinations. See, e.g., June 2020 Veteran Affidavit (attesting to more severe psychiatric symptoms including memory problems, visual and auditory hallucinations, isolating behaviors, mood swings, panic attacks, near-continuous depression, and thoughts of self-harm and suicide); June 2020 Representative Correspondence (noting that the Veteran has experienced increased psychiatric symptomatology since at least March 2018 and also referencing VA medical records reflecting blood pressure readings well in excess of those identified on the April 2017 VA hypertension examination). Further, VA and private treatment records associated with the claims file since those April 2017 VA examinations support these assertions concerning worsening psychiatric and hypertension symptoms. See, e.g., March 2020 VA Psychiatric Progress Note (noting the presence of additional psychiatric symptoms, including “passive death wishes” and classifying the Veteran’s depressive disorder as “moderate” in severity); May 2019, February 2019, September 2018, and April 2018 VA Mental Health and September 2018 VA (reflecting a blood pressure reading of 171/115); ( Accordingly, considering that more than 44 months have passed since the Veteran was last provided VA psychiatric and hypertension examinations, and given the evidence suggesting that these conditions have increased in severity in the intervening years, VA’s duty to assist requires that the Veteran be provided contemporaneous examinations to fully and fairly evaluate the his service-connected psychiatric disorder and hypertension. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability... the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating) Additionally, there is evidence reflecting that the Veteran has applied for Social Security Administration (SSA) disability benefits, see, e.g., August 2018 VA Mental Health Nursing Outpatient Note (indicating that the Veteran had recently been denied SSA benefits); however, a review of the claims file does not show that VA attempted to obtain any of the Veteran’s SSA records as part of his claim. As the claims are being remanded, the RO should attempt to obtain and associate with the claims file any available SSA records. See 38 C.F.R. § 3.159 (c)(2) and (3); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (as long as a reasonable possibility exists that the SSA records are relevant to a Veteran’s claim, VA is required to assist a Veteran in obtaining the identified records). 3. Entitlement to a TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the claim for a higher rating for his depression, inasmuch as both concern his occupational impairment due to the service-connected psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Moreover, the Veteran has not filled out and submitted VA Form VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and the AOJ has not yet adjudicated this issue. Accordingly, the Board will not address the issue of entitlement to TDIU at this juncture. The matters are REMANDED for the following action: 1. Send the Veteran and his representative VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and request that the form be completed and returned to VA. 2. Make arrangements to obtain and associate with the file the Veteran’s SSA records, including all disability determinations, application materials, and associated medical records. 3. Make arrangements to obtain and associate with the file any outstanding VA treatment records, including records dated since March 2020. 4. After completion of the above development (directives #1 - #3), schedule the Veteran for a VA mental health examination with an appropriate examiner to assess the nature and current level of severity of his service-connected acquired psychiatric disorder. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to service-connected disabilities. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). After examining the Veteran, evaluating the current nature and severity of his service-connected psychiatric disability, reviewing the Veteran’s full history by conducting a complete review of the claims file (including all available lay statements, private and VA medical treatment records, and examination reports), the examiner must describe the impact of the Veteran’s psychiatric pathology on his occupational and social functioning and discuss the impact it has on his activities of daily living, including his ability to obtain and maintain employment, and its overall functional impact. Additionally, to the extent possible, the examiner is asked to provide retrospective findings on the severity of the Veteran’s psychiatric pathology, including specifically its impact on his occupational and social functioning, throughout the entire period on appeal since September 2012, with consideration of his VA and private medical records, VA examinations, and lay assertions. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 5. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and current level of severity of his service-connected hypertension. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to service-connected disabilities. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). After examining the Veteran, evaluating the current nature and severity of his service-connected hypertension, reviewing the Veteran’s full history by conducting a complete review of the claims file (including all available lay statements, private and VA medical treatment records, and examination reports), the examiner is asked to provide retrospective findings on the severity of the Veteran’s hypertension throughout the entire period on appeal since September 2012, with consideration of his VA and private medical records, VA examinations, and lay assertions. The examiner is asked to pay particular attention to the VA treatment records dated from April 2018 through May 2019 reflecting blood pressure readings of 171/115, as discussed in the body of the remand above. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 6. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal, to include the issue of entitlement to a TDIU. M. MILLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.