Citation Nr: 21062002 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-40 691 DATE: October 6, 2021 REMANDED An initial rating in excess of 30 percent for unspecified trauma and stressor related disorder with sleep impairment prior to February 28, 2017, and in excess of 50 percent thereafter. REASONS FOR REMAND The Veteran served on active duty from August 1970 to February 1972. The case is on appeal from a July 2014 rating decision. By way of procedural history, following a Board denial of a higher initial rating in excess of 30 percent for the psychiatric disorder prior to February 28, 2017, and in excess of 50 percent thereafter, the Veteran appealed the Board's November 2018 decision to the United States Court of Appeals for Veterans Claim (Court). In January 2020, the Court vacated the Board's decision regarding these issues and remanded it to the Board for reconsideration of the Veteran's claim. In October 2020, the Board remanded the claim for further development. An initial rating in excess of 30 percent for unspecified trauma and stressor related disorder with sleep impairment prior to February 28, 2017, and in excess of 50 percent thereafter. The Veteran generally contends that his psychiatric disorder has been manifested by more severe symptoms and impairment than those contemplated by the 30 percent disability rating prior to February 28, 2017, and 50 percent rating thereafter. In the January 2020 memorandum decision, the Court noted that in the Board's November 2018 decision, it found a July 2017 VA examiner's opinion of increased symptoms consistent with a 50 percent evaluation, but conversely did not find incredible the Veteran's contention that his social and occupational functioning was the same prior to February 28, 2017, i.e., arguing that the 50 percent rating is warranted for the entire appeal period. The Court found a remand was warranted to resolve this contradiction. The Court also noted that the Board did not discuss the severity, frequency, or duration of symptomology. In the October 2020 Board remand, it was determined that a new VA examination was needed to address the current severity, frequency, and duration of the Veteran's psychiatric symptomology, and whether there is any medical reason to accept or reject the proposition that his psychiatric symptomology has remained unchanged throughout the course of the appeal. The Board finds that there was not substantial compliance with the Board's remand directives, and a remand is required for completion. See Stegall v. West, 11 Vet. App. 268 (1998). While a new VA examination was conducted in June 2021, the examiner did not fully and properly address the instructions provided to obtain the relevant information necessary to analyze whether the Veteran's psychiatric symptomology has remained unchanged throughout the course of the appeal. Specifically, the June 2021 VA examiner did not provide the severity, frequency, and duration of all of the identified psychiatric symptoms at the time of June 2014 and July 2017 VA examinations. Nor did the examiner provide an opinion as to whether to accept or reject the proposition that his psychiatric symptomology remained unchanged throughout the course of the appeal, particularly from the time of the June 2014 examination to the July 2017 examination. Thus, a remand is warranted for a retrospective opinion to ensure the Board has adequate evidence to make a decision consistent with the Court's January 2020 memorandum decision. Additionally, in an October 2020 VA treatment record, it was reported that "he sees a psychiatrist in the community. he has a lot of nightmares." It does not appear that records from a private psychiatrist have been requested, and are potentially relevant to the Veteran's claim. As such, an attempt to obtain any identified treatment records regarding the Veteran's psychiatric condition is necessary so that the adjudication of the Veteran's claim is a fully informed one. 38 C.F.R. § 3.159(c). In light of the remand, updated VA and private treatment records should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment providers relevant to his psychiatric claim, and to provide authorization to VA to request the records. Request any so identified records, and associate them with the claims file if they exist. 2. Obtain updated VA treatment records since June 2021. 3. Forward the claims file to an appropriate medical professional for the Veteran's service-connected psychiatric condition. The need for an in-person examination (or telehealth interview if an in-person examination is not feasible) of the Veteran should be determined by the examiner. The record, including a complete copy of this remand, along with the October 2020 Board remand, should be made available for review. (a) The examiner should provide retrospective findings. Specifically, the examiner should: (i) List and discuss the severity, frequency, and duration of all psychiatric symptoms identified at each of the June 2014, July 2017, and June 2021 VA examinations. (ii) Provide an opinion whether there is a medical reason to accept or reject the proposition that the Veteran's psychiatric symptomology has remained unchanged throughout the course of the appeal. This includes specifically opining whether there was an overall increase or decrease of symptoms between the June 2014 and July 2017 VA examinations, and between the July 2017 and June 2021 VA examinations. (b) Based on a review of any additional evidence since the time of the June 2021 VA examination, to include any private mental health treatment records associated with the claims file, the examiner should provide an opinion as to the current severity of the Veteran's psychiatric condition to include his level of social and occupational functioning. If the examiner cannot provide some or all of such opinions requested, the examiner must make clear that he or she has considered all relevant, procurable data (to include the Veteran's statements), but that any member of the medical community at large could not provide such an opinion without resorting to speculation. A complete rationale should be provided for the opinions offered. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.