Citation Nr: 21071032 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 19-34 495 DATE: November 29, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for tardive dyskinesia is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1966 to June 1969, to include service in Vietnam. His decorations include the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, granted service connection and a 0 (zero) percent (noncompensable) rating for tardive dyskinesia, effective December 26, 2017. In a July 2020 decision, the Board increased the rating for tardive dyskinesia to 10 percent. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied a rating in excess of 10 percent for tardive dyskinesia and remanding that matter for readjudication. Entitlement to an initial rating in excess of 10 percent for tardive dyskinesia is remanded. In the JMPR filed with the Court, the parties to the appeal agreed that the Board erred when it failed to ensure that VA had satisfied its duty to assist. More specifically, the parties agreed that the Board erred by failing to obtain a contemporaneous medical examination to assess the current severity of the Veteran's tardive dyskinesia. The parties noted that the Veteran's most recent VA examination was in January 2018, which identified symptoms including involuntary movement of head shaking, eyes blinking, and jaw clenching. Since that examination, the Veteran reported that "his jaw clenching is getting worse." See July 2018 VA mental health note. Additionally, a January 2020 private treatment record indicated "minimal involuntary movements of the head, tongue, trunk, and limbs." Therefore, as the evidence showed that the Veteran's symptoms may have worsened since the January 2018 VA examination, the parties agreed that a new VA examination was warranted to assess the current severity of his tardive dyskinesia. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, the parties agreed that remand was warranted because the Board failed to provide an adequate statement of reasons or bases to support its determination. Specifically, the parties agreed that the Board failed to explain its understanding of the terms of degree (e.g., mild, moderate, and severe) as contained in the relevant rating criteria. Furthermore, the parties agreed that the Board improperly considered factors outside of the rating criteria, including "necessary treatment methods" and the effects of tardive dyskinesia on the Veteran's ability to operate his business. Pursuant to the terms of the JMPR, additional development is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled.). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for purposes of assessing the severity of his service-connected tardive dyskinesia. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the applicable rating criteria. In so doing, the examiner should attempt to elicit information regarding the severity, frequency, and duration of symptoms. A complete medical rationale for any opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.