Citation Nr: 21062583 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 15-00 779 DATE: October 8, 2021 REMANDED Entitlement to an evaluation in excess of 30 percent disabling for service-connected asthma is remanded. Entitlement to an evaluation in excess of 30 percent disabling for service-connected major depressive disorder (MDD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Army from November 1990 to May 1991 and from February 1998 to November 2003. In August 2020, the Board of Veterans' Appeals (Board) issued a decision that denied the Veteran's claim of entitlement to evaluation in excess of 30 percent disabling for service-connected asthma, an evaluation in excess of 30 percent disabling for service-connected major depressive disorder (MDD), and to a TDIU. In June 2021, pursuant to the terms of a Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (CAVC or Court) vacated and remanded the Board's decision. 1. Entitlement to an evaluation in excess of 30 percent disabling for service-connected asthma is remanded. The Appellant contends that he is entitled to an evaluation in excess of 30 percent disabling for service-connected asthma. In May 2021, CAVC evaluated the Board's August 2020 decision and determined that the Board erred when it failed to discuss the Appellant's statements that his asthma worsened in the winter or determine whether it was necessary to obtain pulmonary function tests (PFTs) during the Winter season in order to adequately rate the severity of the Veteran's service connected as asthma. In a previous precedential decision, Ardison v. Brown, the Court noted that "despite the fluctuating nature of appellant's [disability], the VA examination was not performed during the active stage of the condition." 6 Vet. App. 405, 408 (1994). In consideration of the Ardison holding, the Court observes that the Appellant testified at a Board hearing in April 2018. Therein, he reported worsening asthma-related symptoms during the winter season every year. Thereafter, the Appellant's claim was remanded pursuant to a July 2018 Board decision with a directive to obtain an additional VA opinion. In May 2019, a VA examination was conducted however, no PFT testing was performed due to the Veteran's recent heart surgery. A subsequent Board decision, dated August 2020, relied upon PFT findings dated December 2017 and April 2018. On remand, VA must address whether, under Ardison, VA has provided the Appellant with an adequate medical examination or whether it is necessary to examine the Appellant during the winter season in order to properly rate his asthma. 2. Entitlement to an evaluation in excess of 30 percent disabling for service-connected major depressive disorder (MDD) is remanded. In May 2021, CAVC also determined that the Board erred by failing to provide an adequate statement of reasons or bases for its decision regarding the Appellant's assertion that he was entitled to a higher evaluation for his service connected MDD. See 38 U.S.C. § 7104 (d)(1). In reaching the stated conclusion, the Court identified two errors. First, the Board's decision concluded that the evidence failed to show that the Appellant experienced difficulty establishing and maintaining effective work and social relationships however, it failed to discuss, explain, or distinguish relevant evidence documented in the record. Specifically, during a May 2019 medical examination, the Appellant reported a strained relationship with his daughter. Difficulty maintaining a monogamous relationship and poor communication with his wife was noted in treatment records dated February 2013, May 2013, and December 2013. Second, treatment records, dated June 2019, confirm that the Appellant experienced significant paranoia as well as visual hallucinations during his hospitalization for heart surgery. The Court observes that "persistent delusions or hallucinations" have been associated with the diagnostic criteria for an evaluation of 100 disabling under Diagnostic Code 9434. See 38 C.F.R. §§ 4.130 (2020). The Board's August 2020 decision failed to address this evidence. On remand, all favorable evidence must be adequately addressed and discussed in any subsequent decision. Further, adequate support must be provided for all findings and conclusions, to include any determination that the medical evidence failed to show that the Appellant experienced difficulty with establishing effective social relationships. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007) 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Court's May 2021 decision similarly determined that the Board erred in its conclusion that the duty to assist had been satisfied. 38 C.F.R. § 3.159. As a preliminary matter, the Court observes that the Appellant contends that he is entitled to a TDIU. Review of the record indicates that the Regional Office (RO) attempted to obtain the Appellant's U.S. Army Corps of Engineers employment records. The responses suggest two possible locations for these records, either the Office of Personnel Management or the National Personnel Records Center. To date, there is no evidence that the RO obtained these employment records or concluded that "the records sought do not exist or that further efforts to obtain those records would be futile." 38 C.F.R. § 3.159(c)(2). Therefore, the Court finds that a remand is required to ensure that reasonable efforts are undertaken to obtain these records in compliance with section 3.159(c)(2). In addition, the record indicates that VA medical records from the period prior to December 2012 remain outstanding. 38 C.F.R. § 3.159(c)(3). In February 2013, a VA treatment record indicated that Appellant received pain management treatment in June 2011. A lay statement, dated October 2010, referenced the Appellant's receipt of psychiatric treatment at VA Medical Center from 2003 to the present. On remand, the Court determined that all outstanding VA medical records, to include from VA medical center in Huntington, West Virginia, must be obtained and associated with the record. See 38 C.F.R. § 3.159(c)(3). Upon receipt, the previous determination that the February 2011 rating decision is final under 38 C.F.R. § 3.156(b) should be revisited. See Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020) ("Medical records created by the VAMC as a result of the treatment of a specific veteran are necessarily received by the VA adjudicator of that veteran's claims because all such records can reasonably be expected to be connected to the veteran's claims.") Accordingly, this matter is REMANDED for additional development in accordance with the CVAC directives as discussed in more detail below: 1. Obtain the Appellant's VA treatment records for the period prior to December 2013, to include psychiatric treatment received from 2003 to the present. 2. After completing the above referenced development, and any additional development deemed necessary as a consequence of the actions discussed above, the Appellant's claims should be re-adjudicated, to include his claim for a TDIU. As to the later, the any determination must fully consider the cumulative effects of the Veteran's service-connected disabilities" and their impact on his ability to secure or maintain substantially gainful employment. In addition, reconsideration must be given to the previous determination that the February 2011 rating decision is final. 3. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.