Citation Nr: 21065916 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-31 873 DATE: October 27, 2021 REMANDED Entitlement to an initial rating in excess of 50 percent for major depressive disorder (MDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the June 2018 Form 9, the Veteran requested a hearing before the Board. The Board scheduled him for hearings in May 2019, March 2020, and June 2020, which were postponed and rescheduled. Next, the Board scheduled the Veteran for a hearing in October 2021. However, in October 2021, the Veteran withdrew his request for a Board hearing. As such, the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.704(e). Entitlement to an initial rating in excess of 50 percent for MDD. The Veteran, via his representative, contends that a higher rating for MDD is warranted, noting that he is experiencing increased symptoms, including marked interference with daily activities. See Appellate Brief (October 2021). He stated that he has continued to see Dr. W.C., Psy. D, as well as NP D.R. regularly; that his medication dosage has been increased; and that it becomes harder and harder for him to go out and speak to people or deal with change in his surroundings. See Form 9 (June 2018). The Veteran underwent his latest VA mental disorder examination in September 2017, where his symptoms included depressed mood, chronic sleep impairment, and passive suicidal ideation without intent or plan. See VA Examination (September 2017). Since the Veteran's last VA examination in September 2017, VA has obtained VA treatment records, dating to April 2018, showing that the Veteran now receives monthly individual psychotherapy and medication management due to worsening intensity of MDD symptoms secondary to health issues. See CAPRI (April 2018). His mood was noted as deteriorating with him experiencing passive thoughts about death and/or dying, which were said to serve as factors elevating risk. Id. It was noted that he was facing a significant life stressor, necessitating supportive psychotherapy that was to be provided from then on. Id. Because this evidence suggests a material worsening of the Veteran's MDD since his initial and last VA examination in September 2017, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board also notes that no VA treatment records from April 2018 to the present have been associated with the Veteran's file, and it does not appear that the RO attempted to obtain these records. As noted above, the latest VA treatment note provides that the Veteran was to undergo monthly individual psychotherapy and medication management sessions. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. These treatment records have not been associated with the Veteran's file. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (the Federal Circuit held that 38 C.F.R. § 3.159(c)(3) extends VA's duty to assist obtaining sufficiently identified VA medical records, regardless of their relevance). Thus, remand is also required to allow VA to obtain these records. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2018 to the Present. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected MDD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his MDD alone. The examiner should also clearly indicate whether there is any impairment of cognition (e.g., thinking, attention, concentration, focus), speech, or communication due to service-connected MDD and, if so, the severity, frequency and duration thereof. (CONTINUED ON NEXT PAGE) 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.