Citation Nr: 21062240 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-02 405 DATE: October 6, 2021 REMANDED Entitlement to increases in the (10 percent prior to September 15, 2015, 30 percent from September 15, 2015 to December 24, 2019, and 50 percent from that date) staged ratings assigned for a psychiatric disability, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 1986 to May 1990 and from September 1990 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision. An interim ( March 2016 ) rating decision increased the rating for the psychiatric disability to 30 percent, effective September 15, 2015. In September 2019, a videoconference hearing was held before the undersigned; a transcript is in the file. In December 2019, the case was remanded for further development. Another interim ( August 2020 ) Decision Review Officer (DRO) decision increased the rating to 50 percent, effective December 24, 2019. The Board is aware that this matter was previously remanded (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On August 19, 2015 VA posttraumatic stress disorder (PTSD) examination, the examiner found that the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD; however, major depressive disorder and unspecified personality disorder were diagnosed. In an August 27, 2015, opinion, the provider opined that it was at least as likely as not that the Veteran's current major depressive disorder is related to the mental health disorders that were treated during his service. On December 2015 VA mental disorders examination, major depressive disorder and unspecified anxiety disorder were diagnosed. The examiner opined that the Veteran's occupational and social impairment with regard to all mental diagnoses was best summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In a January 2016 private opinion, the provider diagnosed PTSD and suggested that the Veteran's symptoms resulted in impaired ability to maintain meaningful employment and were more likely than not to have been present since the time of military service based on history of hospitalizations. In a June 2016 VA opinion (sought to resolve the conflicting medical evidence) it was noted that the August 2015 and December 2015 VA examinations found that the criteria for a PTSD diagnosis were not met, but a January 2016 private opinion diagnosed PTSD. The June 2016 provider noted that the January 2016 provider did not identify the stressor on which the PTSD diagnosis was based and that the Veteran's reported symptoms were so extreme that he could not say that they were related to his major depressive disorder diagnosis. At the September 2019 videoconference hearing, the Veteran's representative alleged the August 2015 and December 2015 VA examinations did not properly consider his symptoms and that the January 2016 private opinion was not properly considered. The Veteran testified that he suffered drowsiness at work possibly due to his psychiatric medications and had been disciplined at work for missing items during security checks. In a December 2019 remand, the Board directed that an examiner should describe in detail all symptoms of the Veteran's psychiatric disability, and their impact on occupational and social functions, and specifically note the presence (and frequency/severity) or absence of, each symptom listed in the criteria for schedular ratings of 30 percent or more prior to September 2015 and 50 percent or above from that date, as well as any other symptoms of similar gravity found that are not listed in the rating criteria. The examiner was also to opine, in part, regarding the impact the psychiatric disability had on the Veteran's daily activity/social functioning, and its expected impact on occupational functioning. In a December 2019 VA opinion, the provider indicated that the Veteran met the DSM-5 criteria for the diagnosis of major depressive disorder, but did not meet the DSM-5 criteria for an additional mental diagnosis. He indicated that he agreed with the findings on August 2015 VA examination and on the December 2015 mental disorder disability benefits questionnaire (DBQ) (but noted that there did not seem to be a basis for the additional diagnosis of unspecified personality disorder). The provider stated that he agreed with the rationale (in the June 2016 VA opinion) that the Veteran's stated stressors did not meet the DSM-5 criteria for the diagnosis of PTSD, and that he did not agree with the diagnosis (in a January 2016 private PTSD DBQ) of PTSD because there was no rationale presented to warrant a diagnosis of PTSD or for the majority of symptoms associated with his proposed social/occupational level of functioning. The December 2019 opinion is inadequate because the examiner was not responsive to the specific directives in the December 2019 Board remand, particularly with regard to describing all symptoms of the Veteran's psychiatric disability, and their impact on occupational and social functions, in detail, and specifically noting the presence (and frequency/severity) or absence of, each symptom listed in the criteria for schedular ratings of 30 percent or more prior to September 2015 and 50 percent or above from that date. Rather, the examination was primarily focused on current symptoms and functional impairment. Therefore, and considering the Veteran's representative's continuing allegations regarding the adequacy of examinations, remand for an adequate medical advisory opinion is necessary. The most recent records of VA evaluations and treatment the Veteran has received for his psychiatric disability are from May 2021. VA treatment records are constructively of record, may contain pertinent information, and must be secured. The matter is REMANDED for the following: 1. Secure for the record complete (updated to the present) clinical records of all VA evaluations or treatment the Veteran has received for psychiatric disability. 2. Then arrange for the claims file to be forwarded to a VA psychologist or psychiatrist (other than the psychologist who examined the Veteran in December 2019), for review and an addendum opinion [including retrospective] regarding the severity of the psychiatric disability during the period on appeal. [If another examination is deemed necessary, it should be arranged.] (a) The Veteran's entire record (from the May 13, 2015 effective date of service connection for a psychiatric disability -to include this remand and any records received in response to the directive in #1, above) should be reviewed by the provider (and the provider should have available for review 38 C.F.R. §§4.126, 4.130 (the portions of VA's Rating Schedule pertaining to the rating of psychiatric disability). The provider should specifically note the presence (and frequency/severity), or absence of each symptom listed in the criteria for schedular ratings of 30 percent or more prior to September 2015, 50 percent or above from September 2015 to December 2019, and 70 percent or above from that date, as well as any other symptoms of similar gravity found not listed in the rating criteria. The provider should describe all symptoms of the psychiatric disability (during the requested periods) and their impact on occupational and social functions, in detail. (b) The provider should opine regarding the impact the Veteran's psychiatric disability has had on his daily activity/social functioning, and its expected impact on occupational functioning. (c) The provider should express agreement or disagreement with the August 2015, December 2015, and June 2016 VA opinions, and the January 2016 private opinion and explain the reasoning for the agreement or disagreement, with citation to supporting clinical data and medical principles, as indicated. All opinions must be accompanied by complete rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.