Citation Nr: 21022181 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-31 837A DATE: April 15, 2021 REMANDED Entitlement to a rating in excess of 50 percent for adjustment disorder with anxiety and depressed mood (adjustment disorder) is remanded. Entitlement to a total disability based on unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1990 to December 1993. The claim for an increased rating for service-connected psychiatric disability was previously denied in a May 2019 Board decision. The Veteran subsequently appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the parties submitted a Joint Motion for Partial Remand (JMPR) requesting that the issue be vacated and remanded for compliance with the terms of the Joint Motion. The Court granted this motion in a February 2020 Order, and the case was returned to the Board for further adjudication. The Board remanded the Veteran’s claims in August 2020. 1. Entitlement to a rating in excess of 50 percent for adjustment disorder. 2. Entitlement to a TDIU. Issues 1 & 2: The Veteran asserts that her adjustment disorder warrants a rating in excess of 50 percent. Specifically, she described having distanced herself from almost everyone she knows, and being nervous and anxious when dealing with anyone. See Correspondence (February 2021). She stated that she does nothing, stays alone at home, and does not get out of bed. Id. She claims that she is unemployable due to her adjustment disorder and anxiety. See Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-894) (February 2021). In support of her assertions, she submitted several buddy statements, including one from her friend, who indicated that she does not talk to her friends, isolates and pretends to be fine. See Buddy / Lay Statement (February 2021). Her neighbor submitted a statement that the Veteran appeared distant, rarely left the home, appeared withdrawn from neighbors, and presented with usual nervousness and anxiety. See Buddy / Lay Statement (February 2021). To ensure that VA has met its duty to assist, the Board finds that a remand is necessary.  38 C.F.R. § 3.159(c). Frist, the Veteran was previously diagnosed with adjustment disorder with anxiety and depressed mood. However, the October 2020 VA examiner diagnosed the Veteran with major depressive disorder. See C&P Exam (October 2020). The examiner found that, “For the VA established diagnosis of adjustment disorder with anxiety and depression the diagnosis is changed and it is a new and separate diagnosis.” While the examiner noted that the Veteran was suffering from a major depressive episode related to the suicide of her son in December 2019 at the time of the October 2020 VA examination, he did not clarify (1) whether he initial psychiatric diagnosis of adjustment disorder that is service-connected had resolved, (2) whether her new and separate diagnosis of major depressive disorder was, in any part, related to her service-connected adjustment disorder, and (3) if these diagnoses are distinguishable, which symptoms are attributable to each. Accordingly, remand to determine the Veteran’s current psychiatric diagnoses or diagnoses, to include adjustment disorder and major depressive disorder, is necessary. See 38 C.F.R. § 4.13 (“The relevant principle enunciated in §4.125, entitled ‘Diagnosis of mental disorders,’ should have careful attention in this connection.”); 38 C.F.R. § 4.125 (requiring that if a diagnosis is changed, VA shall determine whether the new diagnosis represents a progression of the prior diagnosis, correction of an error in the prior diagnosis, or the development of a new and separate condition). It is unclear the extent the Veteran’s psychiatric symptoms, to include depression, are attributable to his service-connected adjustment disorder or major depressive disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). Additionally, the record reflects that the Veteran is receiving Social Security Administration (SSA) benefits. SSA profile and benefit data does not specify the conditions for which she is receiving benefits. Nevertheless, these records are considered federal records for duty to assist purposes. The RO, in this case, has not made the appropriate attempts to obtain the records. Upon remand, SSA records must be obtained. See 38 C.F.R. § § 3.159(c)(2) and (3); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (if a reasonable possibility exists that the SSA records are relevant to a Veteran’s claim, VA is required to assist a Veteran in obtaining the identified records). Lastly, on her VA form 21-8940, the Veteran provided incomplete and conflicting employment information. VA had a duty to attempt to clarify the Veteran’s employment history. The Veteran indicated the date that her disabilities affected full-time employment as December 1, 1993; the date she last worked full-time as August 5, 2000; and the date she became too disabled to work as February 1999. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (February 2021). The Veteran also listed that she last worked in 1999 20 hours a week at LBrands. Id. However, the Veteran has stated and has submitted buddy statements that she worked as the United States Postal Service. See i.e. C&P Exam (January 2017). At her October 2020 VA examination, the Veteran reported last working at Victoria’s Secret and subsequently attending a job readiness program. See C&P Exam (October 2020). Furthermore, the dates that she provided conflict, necessitating clarification from the Veteran and securing income tax records for the years associated with the TDIU appeal period to facilitate a determination on her employment status. The matters are REMANDED for the following action: 1. Obtain all SSA records, including a copy of the award letter. Any negative search results should be noted in the record. 2. Ask the Veteran to fully complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide complete information needed to address the matter of TDIU. 3. Request the Veteran’s tax returns to confirm her claimed unemployment during the period from 1993 2001. 4. Obtain the Veteran’s VA treatment records for the period from January 2021 to the Present. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected adjustment disorder with anxiety and depressed mood. The examiner should provide a full description of the service-connected disability and report all signs and symptoms necessary for evaluating the Veteran’s service-connected disability under the rating criteria. (a.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. (b.) Given that the Veteran has been diagnosed major depressive disorder, indicate whether any symptoms associated with any nonservice-connected mental disorder(s) cannot be distinguished from the Veteran’s service-connected adjustment disorder. Explain. (c.) For TDIU purposes, elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the impact of her service-connected adjustment disorder with anxiety and depressed mood on employment. The examiner should identify all limitations or functional impairment caused solely by service-connected adjustment disorder with anxiety and depressed mood to include whether there is any functional impairment of memory, attention, focus, and/or concentration associated with the Veteran’s service-connected adjustment disorder with anxiety and depressed mood, and if so, the severity of such symptoms. 6. 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.