Citation Nr: 21071483 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-35 347A DATE: November 30, 2021 REMANDED Entitlement to an initial disability rating higher than 50 percent for anxiety disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND As stated in the November 2020 Board decision, by way of an August 2020 letter the Veteran and his representative waived review by the Agency of Original Jurisdiction (AOJ) of the VA treatment records that were added to the file after the issuance of the July 2019 supplemental statement of the case (SSOC). However, the Board is aware that additional VA-generated evidence, to include mental health treatment records dated between September 2020 and July 2021, was added to the claims file after receipt of this waiver. As an additional waiver has not been obtained and the AOJ has not issued another SSOC, upon remand, the AOJ is asked to consider this evidence in the first instance. The Veteran testified before the undersigned Veterans Law Judge in an October 2018 Travel Board hearing. A transcript of that hearing has been associated with the file. In November 2020 the Board granted a 50 percent disability rating for anxiety disorder, with an effective date of October 1, 2009, and denied the TDIU claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted the parties' June 2021 joint motion for partial remand (JMPR) and vacated the November 2020 Board decision to the extent that it denied granting a disability rating in excess of 50 percent for anxiety disorder and denied the claim for TDIU. The case has been returned to the Board for compliance with the terms of the JMPR. Anxiety disorder In the JMPR, the parties agreed that the Board erred in denying an increase of 50 percent for the anxiety disorder claim as it failed to provide an adequate statement of reasons and bases. Specifically, the Board did not address whether the Veteran had suicidal ideation and whether any suicidal ideation was related to any of his service-connected disabilities. Even more specifically, when not addressing suicidal ideation, the Board did not address the conflicting statements from the Veteran as to the nature of his suicidal ideation and did not address whether the medication overdoses documented in the VA file were truly accidental or attempted suicides. The parties further agreed that the Board's finding that the Veteran's suicidal ideation was linked to his physical pain or to prescribed medication was inadequate because the Board failed to explain whether the physical pain or prescribed medication that gave rise to suicidal ideation were related to a service-connected disability. In order to comply with the terms of the JMPR, the Board finds that a remand is required. In reaching the above agreements several, specific evidence was referenced. The JMPR referenced a June 17, 2016 VA medical record, stating that the Veteran "felt suicidal due to his chronic pain and that he had been contemplating overdosing, but then he denied it when he was further interrogated by the social workers..." A review of the record shows that there are three VA treatment records dated June 17, 2016. A read of these records shows the Veteran presented to the emergency department with epigastric pain and was treated by a physician D.O. and by a physician assistant. He did report contemplating overdosing; however, there is no indication that he was treated by a social worker, or interrogated by one. The JMPR referenced the October 2018 hearing, stating that the Veteran testified that "his 2016 overdose was not accidental." A review of the hearing transcript shows that the Veteran did testify about an overdose and it not being accidental. As a matter of clarification, the Veteran testified that the "episode" occurred "back in 2015," and not in 2016. The JMPR referenced a June 28, 2016 VA nursing note and a July 14, 2017 VA progress note. A review of the November 2020 Board decision shows that despite listing out much of the evidence in the file, the Board did not describe these records in their decision. With respect to the "other psychiatric symptoms," the parties agreed that the Board failed to adequately address symptoms other than suicidal ideation and whether they indicated a higher rating. The JMPR referenced specific evidence, all of which was described in the Board decision. However, the parties agreed that the Board did not address specific symptoms when analyzing the level of severity. Lastly, the parties agreed that the Board, after re-examination of the evidence of record, shall seek any other evidence the Board deems necessary. Given the above referenced evidence, it is not entirely clear as to whether the Veteran presented with suicidal ideation, if so, during what times during the appeal period, and if so, was this a symptom of his service-connected anxiety disorder, other service-connected disabilities, or non-service-connected disabilities. As such, a remand is needed to obtain medical opinions regarding the current level of severity of the Veteran's anxiety disorder. As stated in November 2020 Board decision, VA sent the Veteran a development letter in May 2019 in an effort to secure outstanding private treatment records. Despite the Veteran not responding, as the matter is being remanded the Board will request that additional efforts be made to obtain these records. TDIU In the JMPR, the parties agreed that the issue of TDIU is inextricably intertwined with the increased rating claim for anxiety disorder. As the issue of TDIU is inextricably intertwined with the anxiety disorder claim, it must be remanded to allow the AOJ to readjudicate the claim. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should contact the Veteran and request that he identify any private treatment records related to his anxiety disorder that he wants considered in this matter, to include any medical records from Dr. G. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records not already associated with the file. 2. The AOJ should provide the Veteran with VA Form 21-8940 in connection with the claim for entitlement to TDIU, and request that he provide any updates that may not be stated in his February 2016 VA Form 21-8940 or may not otherwise be part of the file. 3. The AOJ should schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his anxiety disorder. The examiner is requested to conduct a thorough complete review of this file, to include this remand, and should note that such review was performed. All necessary tests should be performed, and the results reported. To the extent possible, the examiner should identify any symptoms and functional impairments due to the anxiety disorder alone and discuss the effect of the Veteran's anxiety disorder on any occupational functioning and activities of daily living. 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. To the extent possible the examiner should opine as to the level of severity of the Veteran's anxiety disorder throughout the appeal period (from October 2009). To the extent possible, the examiner should opine as to whether there is suicidal ideation/attempts during the appeal period. Upon review of the record and examination of the Veteran, opine as to what times during the appeal period the Veteran presented with suicidal ideation, and whether the suicidal ideation is a symptom of the Veteran's service-connected anxiety disorder, other service-connected disabilities, or non-service-connected disabilities. The examiner is advised that there are numerous VA mental health treatment records, and reminded that a complete review is requested. The examiner is requested to note in his/her report that a full review of the Veteran's electronic claims file was completed. Specifically, the examiner must note review of the following nine (9) documents and explicitly state whether these descriptions constitute suicidal ideation and if so what disability or disabilities are the reason for the suicidal ideation. (a.) A June 17, 2016 VA Emergency Department record, showing that the Veteran presented with epigastric pain, reported feeling suicidal secondary to his chronic abdominal pain, and that he contemplated overdosing for the last several days. This record is located at VBMS, document labeled CAPRI, receipt date September 19, 2016, page 182 of 1887. (b.) A June 28, 2016 VA nursing note describing that the Veteran contacted the VA medical center to inform them that he was admitted to the ICU four days prior for an overdose and that he believes he took his prescribed medication twice that same morning. This record is located at VBMS, document labeled CAPRI, receipt date August 2, 2016, page 80 of 239. (c.) A July 14, 2017 VA progress note, wherein during individual counseling the Veteran discussed his attempted suicide in the past by using pain medications and other pills. This record is located at VBMS, document labeled Medical Treatment Record-Government Facility, receipt date October 17, 2018, page 17 of 28. (d.) The October 16, 2018 hearing transcript where the Veteran provided the following testimony, "I had an episode back in 2015 and I haven't shared this with my counselors and such. They called it an accidental overdose. Well, it wasn't accidental." This record is located at VBMS, document labeled Hearing Transcript, receipt date October 16, 2018, page 10 of 27. (e.) A VA Mental Health Crisis Intervention note dated June 8, 2020 that documents communication via phone that occurred on June 7, 2020 between and between 3:18 pm and 5:30pm, between the Veteran's friend of 25 years and Dorn Veterans' Hospital, the Veteran and Dorn Veterans' Hospital wherein the Veteran's friend contacted the Hospital on June 7, 2020 and during the plus two hour conversation the Veteran reported that "he is not doing well," reported his chronic pain for 20 years, and reported suicidal ideation with intention, plan and means, including medication. This record is located at VBMS, document labeled CAPRI, receipt date June 12, 2020, pages 3-5 of 228. (f.) A June 7, 2020 VA Emergency Department note, dated as occurring very shortly after the June 7, 2020 communication between Dorn Veterans' Hospital, that shows the Veteran presented with a complaint of suicidal ideation and reported chronic cervical issues he has had for many years. It reads that he was interviewed by mental health social worker and a mental health PA and was cleared for suicide ideation and able to return home. This record is located at VBMS, document labeled CAPRI, receipt date June 12, 2020, pages 24-29 of 228. (g.) Three VA treatment records dated June 7, 2020, all dated as occurring after the June 7, 2020 communication between Dorn Veterans' Hospital the Veteran and after the June 7, 2020 visit to the VA Emergency Department, wherein the Veteran described his taking too many pills was as a result of his attempt to make his chronic, uncontrollable, back pain stop and where he adamantly denied suicidal ideation. These records are located at VBMS, document labeled CAPRI, receipt date June 12, 2020, pages 6-7, 11, and 19-20 of 228. The examiner is asked to provide a complete a rationale for all opinions offered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided. 4. The AOJ should ensure that the opinions conform with the remand directives. 5. Re-adjudicate the matter of entitlement to TDIU. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.