Citation Nr: 21025502 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-59 444 DATE: April 28, 2021 REMANDED Entitlement to an evaluation in excess of 50 percent for service-connected persistent depressive disorder, claimed as manic depression and anxiety, is remanded. Entitlement to service connection for chronic drug addiction with suicidal tendency, to include as secondary to the depressive disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to February 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. The Board notes that the RO denied the claim for TDIU in the April 2016 rating decision. The Veteran did not timely appeal the claim as to the TDIU only. However, the claim for TDIU was made during the pendency of the claim for an increased rating for depression. When a claim for TDIU is expressly raised by the Veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the adjudication of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). As such, the claim for TDIU is part and parcel with the increased rating claim. Id. Although the Board regrets the delay, a remand is necessary to ensure due process and proper development regarding the Veteran’s claims. 1. An evaluation in excess of 50 percent for depressive disorder The Veteran was last afforded a VA examination in February 2016. As there is evidence that the Veteran’s service-connected depressive disorder may have worsened since his most recent VA medical examinations, the Board determines that a contemporaneous VA examination is necessary to ascertain the current severity of the Veteran’s service-connected depression. Snuffer v. Gober, 10 Vet. App. 400, 408 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). Specifically, the Veteran testified at the 2020 Board hearing that he has had suicidal ideation since leaving service, and that he has had several overdose attempts. His records also indicate he has been hospitalized for opioid addiction and his depression. He also reported that he went to a psychiatrist/counselor at his last employed job in 2002 and he has ongoing treatment at VA medical centers. Based on the foregoing, the Board finds remand is appropriate for the increased rating claim so that a new examination can be arranged to properly assess the current severity of the Veteran’s depression and to retrieve outstanding VA and any private treatment records, as detailed below. 2. Service connection for a chronic drug addiction with suicidal tendency The Veteran contends that his drug addiction with suicidal tendency is due to service or is secondary to his service-connected depressive disorder. Specifically, in the 2020 Board hearing, he testified that he began using different substances after he first became depressed to cope with the depression while on active duty. His representative also argued that the substance abuse was not the cause of willful misconduct in service, but that the Veteran was treating his early undiagnosed onset of major depressive disorder. In May 2016, the Veteran submitted statements from family members who stated he had never drunk or used drugs prior to service. No probative etiology opinion has been provided. Rather, the 2015 VA examiner stated “documentation supports a history of addictive behaviors but not apparent treatment for these while in the military and it is my professional opinion that it would be speculative to determine any relationship between depressive symptoms associated with the military and the Veteran's addictive behaviors.” The February 2016 examiner noted that when the Veteran “is feeling sad, he tries to feel better through the use of substances or gambling. However, deciding how much of his social and occupational impairment is due to sadness rather than substance use or gambling would require this examiner to resort to conjecture. All [mental health] diagnoses are symbiotic with one another.” Accordingly, as part of the VA examination to address the nature, severity, and impact on functioning of the Veteran’s service-connected depressive disorder, an opinion should also be obtained to determine whether the Veteran’s polysubstance abuse is secondary to his service-connected depressive disorder and determine which, if any, symptoms are distinguishable from those due to service-connected depressive disorder. Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability). 3. TDIU As noted above, the Veteran’s TDIU claim is intertwined with the increased rating claim that is the subject of the present appeal and remand. Accordingly, adjudication of the TDIU claim must await development and readjudication of this claim, as a claim that is inextricably intertwined with another claim that remains undecided and pending before VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Veteran’s file includes a record showing he has been receiving Social Security benefits since 2001, but there are no other records submitted with this. However, any records based on disability benefits would no longer exist; once a person reaches retirement age, disability benefits automatically convert to retirement benefits, or after 7 years following the date of adjudication of a claim, it is SSA’s policy to then destroy the medical records associated with the disability claim. See 68 F.R. 71210 (December 22, 2003). Therefore, the Board will undertake no development to request SSA records since they would no longer exist per SSA’s records retention policies. If, however, the Veteran was awarded disability benefits and he has any of his SSA records in his possession, he should submit them if he wants VA to consider them. The matters are REMANDED for the following action: 1. Obtain VA treatment records from June 2020 to the present and associate them with the claims file. The RO is to also ensure that all VA hospitalization records when the Veteran was admitted for depression and overdoses from October 2014, March 2017, August 2017, and March 2020 are obtained. 2. Contact the Veteran and ask him to identify the names and addresses and approximate dates of treatment from any private provider who has treated him for his depression and ask him to complete releases authorizing VA to obtain those records. Specifically, the private medical treatment he mentioned during the Board hearing from the work psychiatrist, and any other relevant private treatment pertaining to the claims on appeal. If any private records identified by the Veteran are not obtained, notify him and his representative of such and give them an opportunity to obtain the records and submit them. 3. Schedule the Veteran for a VA examination to determine the current severity and impact of the depressive disorder, and to determine the nature and etiology of his depressive disorder with his polysubstance abuse disorder. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. The examiner is asked to: (a.) Determine the current severity of his service-connected depressive disorder. (b.) Opine whether it is at least as likely as not that the Veteran’s polysubstance abuse disorder was caused or aggravated by his service-connected depressive disorder. (c.) If the answer to (b) is no, then the examiner should also offer an opinion regarding whether symptomatology associated with the Veteran’s other diagnosed (but non-service connected) psychiatric disorders (e.g., his substance abuse) can be distinguished from the symptomatology associated with the service-connected depression. Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability). If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the polysubstance abuse disorder prior to aggravation by the service-connected psychiatric disorder. Consideration should be given to the buddy statements submitted in May 2016 from family members stating the Veteran did not use any substances prior to service; his service medical records showing he started using substances three months after entrance to service; and his 2020 Board hearing testimony that he first began using substances while in service and continues so as to cope with his depression. The examiner must specifically discuss the effect of the Veteran’s service-connected depressive disorder on any occupational functioning and activities of daily living. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements and buddy statements. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.