Citation Nr: 21022783 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 12-34 192 DATE: April 19, 2021 REMANDED Entitlement to an initial rating in excess of 70 percent for post-traumatic stress disorder (PTSD) with major depressive disorder (MDD), since February 17, 2010, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1966 to March 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in August 2020 at which time the Board remanded the issues to the RO for further action consistent with the United States Court of Appeals for Veterans Claims (Court) February 2020 Joint Motion for Partial Remand (JMPR) in the case. The February 2020 JMPR stems from the Veteran’s appeal of the Board’s February 2019 decision that granted a rating of 70 percent prior to February 21, 2017, but denied a rating in excess of 70 percent for the entire appeal period and also denied entitlement to a TDIU. Upon appeal, the February 2020 JMPR was entered, vacating the February 2019 Board decision. The August 2020 Board remand directed the RO to obtain outstanding VA and private treatment records and information as to unemployability from the Veteran. The matter has returned to the Board for appellate review after the August 2020 Board remand. For the reasons noted below, the Board finds a remand is again warranted to afford the Veteran full consideration for his claims. 1. Entitlement to an initial rating in excess of 70 percent for PTSD with MDD, since February 17, 2010, is remanded. In the February 2020 JMPR and August 2020 Board remand, it was noted that there were treatment records that may have not been associated with the claims. In July 2020 the Veteran submitted private treatment records and his statements regarding his PTSD symptoms. The Veteran’s representative also stated that the COVID-19 pandemic caused a delay in information getting to the Veteran and his representative and requested the evidence be accepted in support of his appeal. Then updated VA medical center (VAMC) treatment records were associated with the claims file after the August 2020 Board remand. The Veteran then submitted a completed VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in September 2020. Further private treatment records were associated with the claims file in September 2020 and the Veteran waived RO jurisdictional review. Here, the Board notes that in the February 2020 JMPR, it was noted that there was favorable evidence as to the 100 percent rating criteria for PTSD left to be addressed. The parties noted auditory hallucinations as a symptom under the 100 percent rating criteria and found that the Board did not address the Veteran’s October 2010 reports of hearing his name called in warning as submitted with his Notice of Disagreement (NOD) to determine whether it showed auditory hallucinations to warrant a 100 percent rating. Additionally, the JMPR noted that the 100 percent rating criteria also lists intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), as a symptom, and noted that the Board acknowledged the Veteran’s reports that he had bad hygiene and developed gingivitis but did not explain whether that demonstrated an intermittent inability to perform maintenance of minimal personal hygiene to warrant a 100 percent rating. Although a July 2020 private psychotherapy opinion is associated with the claims file and discusses the Veteran’s symptoms, the opinion does not address the Veteran hearing his name called in warning. Further, although the opinion discusses the Veteran’s difficulties in maintaining basic physical hygiene, the opinion does not discuss whether there is a demonstration of an intermittent inability to perform maintenance of his personal hygiene. The updated medical records, as well as the Veteran’s lay statements, reflect that the Board is not fully informed of the Veteran’s PSTD severity level. The Board notes that an opinion is adequate where it is based upon consideration of the Veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Veteran’s last full examination was in February 2017. Although VA examinations do not necessarily go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Review of the February 2017 VA examination does not inform the Board of the necessary information noted above. As such, a remand is in order to obtain an opinion that adequately considers the Veteran’s symptoms. 2. Entitlement to TDIU rating is remanded. A decision on this issue is deferred until the claim for an increased rating has been developed and adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate those records with the claims file. 2. After the above development is complete, schedule the Veteran for an examination with an appropriate examiner, to assess the severity of his service-connected PTSD for the entire period on appeal, from February 17, 2010. The examiner should note that the claims folder was reviewed. An in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should discuss all of the Veteran’s reported symptomatology, both currently and for the entire period since February 17, 2010. The examiner should consider all the Veteran’s lay statements, including his October 2010 reports of hearing his name called in warning, whether he demonstrates an intermittent inability to perform maintenance of his personal hygiene, and his statements submitted in July 2020. The examiner is asked to review and discuss the July 2020 private psychotherapy report. The examiner must also provide an assessment of the Veteran’s functional limitations due to his service-connected disabilities as it may relate to his ability to function in a work setting and to perform work tasks. (Continued on the next page)   A complete rationale for all opinions is required. A. J. Spector Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.