Citation Nr: 21070167 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 10-05 317 DATE: November 23, 2021 REMANDED Entitlement to an increased disability rating in excess of 30 percent prior to August 27, 2017 for the service-connected dysthymic disorder, generalized anxiety disorder, and adjustment disorder is remanded. Entitlement to an increased disability rating in excess of 70 percent since August 27, 2017 for the service-connected dysthymic disorder, generalized anxiety disorder, and adjustment disorder is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1996 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to a February 2019 Board decision, the Board, in pertinent part, denied the claims for entitlement to increased disability ratings in excess of 30 percent prior to August 27, 2017 and in excess of 70 percent since that time for the service-connected dysthymic disorder, generalized anxiety disorder, and adjustment disorder. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By an August 2020 Memorandum Decision, the Court vacated the February 2019 Board decision to the extent it denied the increased ratings claims and remanded the claims back to the Board for compliance with the Court's decision. The February 2019 Board decision also remanded the claim for entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an increased disability rating in excess of 30 percent prior to August 27, 2017 for the service-connected dysthymic disorder, generalized anxiety disorder, and adjustment disorder is remanded. Although regrettable, the Board finds that remand is required prior to adjudication of the Veteran's claims. As an initial matter, it appears the Veteran may be in receipt of Social Security Administration (SSA) disability benefits according to a SSA statement submitted by the Veteran in September 2021. Upon review, the Veteran's SSA records have not been associated with the claims file. As the records are potentially relevant to the issues on appeal, they must be requested. See Golz v. Shinseki 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). Accordingly, SSA records should be obtained upon remand. 2. Entitlement to an increased disability rating in excess of 70 percent since August 27, 2017 for the service-connected dysthymic disorder, generalized anxiety disorder, and adjustment disorder is remanded. The Veteran most recently underwent VA psychiatric examination in June 2016. Thereafter, in September 2017, he submitted a mental disorders disability benefits questionnaire (DBQ) that was performed on August 27, 2017. VA examinations do not go stale merely due to the passage of time, but VA has a duty to ensure that the evaluation of the Veteran's disability is a fully formed one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, it appears that the Veteran's psychiatric condition has worsened. In this regard, in a September 2021 statement submitted along with his VA Form 21-8940, the Veteran stated that his relationships with his family have degraded over time, and that he has no friends where he currently lives. In addition, he stated that he has racing thoughts daily and panic attacks several times per week. He also stated he was taken to the hospital after collapsing due to an anxiety-induced situation only two years ago. Further, he stated that he often worries about his future, is very hard on himself and has trouble with reading comprehension and with his memory, to include not remembering if he brushed his teeth and forgetting conversations he has had. Given that the Veteran's last examination was over four years ago, and the medical evidence of record does not otherwise adequately describe the severity of the Veteran's psychiatric condition in the subsequent years, the Board finds it necessary to schedule the Veteran for a contemporaneous VA examination to ascertain the current severity of his psychiatric condition. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. In September 2021, the Veteran submitted his VA Form 21-8940 wherein he listed working at Breathe and Pensacola Athletics Center as a yoga instructor and recently being hired to work at the Pensacola VA Clinic in June 2021 as a recreational assistant. It does not appear that VA Form 21-4192 has been sent to the Veteran's listed employers. Accordingly, remand is required so that such may be accomplished. In addition, the Board notes that the Veteran's federal employment records have not been obtained and associated with the claims file. Accordingly, remand is required to allow VA to request these potentially relevant records. Updated treatment records should also be obtained upon remand. The matters are REMANDED for the following actions: 1. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. 2. Request the Veteran provide authorization and/or release for his Pensacola VAMC federal employment records. After authorization by the Veteran, contact the Pensacola VAMC, Office of Personnel Management (OPM), and/or any other appropriate records depository and request all documents pertaining to the Veteran's federal employment records, to include any and all administrative or medical records, e.g., formal, or informal reprimands, counseling records, disciplinary records, performance evaluations, and leave records (e.g., leave statements and Family and Medical Leave Act [FMLA] leave records). All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his representative must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Send VA Form 21-4192 to the Veteran's listed employers on his VA Form 21-8940. Elicit any information or authorization required from the Veteran. All efforts to obtain such records must be documented in the electronic claims file. If a negative response is received from the employer, document such in the electronic claims file and provide the Veteran and his representative with appropriate notice. 4. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disability. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 5. After records development is completed, schedule the Veteran for a VA psychiatric examination to determine the current severity of the Veteran's service-connected dysthymic disorder, generalized anxiety disorder, and adjustment disorder. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the psychiatric conditions should be reported. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.