Citation Nr: 21026892 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-19 846 DATE: May 4, 2021 REMANDED 1. Entitlement to increases in the staged ratings assigned for a variously diagnosed psychiatric disability is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 28, 2019 is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1966 to January 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision (which granted service connection for generalized anxiety disorder and major depressive disorder, rated 10 percent effective November 7, 2005) and a February 2018 rating decision (which denied entitlement to a TDIU rating). A June 2014 Board decision granted service connection for PTSD; a July 2014 rating decision promulgated the Board's grant, also effective November 7, 2005, noting it would be included with the rating for his already service-connected generalized anxiety and major depressive disorder. An April 2016 rating decision increased the rating for the psychiatric disability to 30 percent, effective August 26, 2014. In March 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2019, the matters were remanded for additional development. A May 2020 rating decision increased the rating for the psychiatric disability to 50 percent, effective October 28, 2019. In October 2020, these matters were again remanded for additional development. A December 2020 rating decision granted a TDIU rating, effective October 28, 2019 (and is not considered a full grant of the benefit sought). 1. Entitlement to increases in the staged ratings assigned for a psychiatric disability. The Board is aware this matter was remanded twice before (and regrets the delay inherent with yet another remand). However, the responses to the prior remands did not adequately comply with prior remand instructions, and corrective action remains necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2020 Board remand requested development for updated (to the present, all outstanding) complete clinical records of VA evaluations and treatment the Veteran has received for his psychiatric disability (specifically including from Clarksburg VAMC from October 2010 to February 2016, and December 11, 2015 and February 23, 2016 reports), followed by a medical advisory opinion. The consulting provider was asked to furnish a retrospective opinion regarding the impact the Veteran's psychiatric disability symptoms had had on his employability, notably the effects of poor concentration and memory loss. Before requesting a VA addendum opinion in November 2020, the AOJ only obtained a portion of VA treatment reports, notably VA treatment reports from May 2006 and duplicate copies of VA examination reports that were already associated with the record. In a November 10, 2020 VA medical advisory opinion, the consulting provider noted that based on a review of his chart the Veteran has had memory problems since 2006. She opined that his issues with concentration and short term memory could make it difficult to learn and retain new information, follow directions, find things, or reliably complete tasks and that his problems with depression and anxiety due to tinnitus could make it hard for him to communicate with customers, peers, or supervisors. In a November 19, 2020 addendum opinion, the consulting provider opined it was speculative to assume that the Veteran is an accurate reporter of his cognitive functional impairment, noting she never directly examined the Veteran. However, she opined it is more likely than not, per records and evaluations reviewed, that he has cognitive issues that have been recorded since 2006. The consulting provider did not reconcile the opinion regarding impact his psychiatric disability symptoms had on his employability offered in October 2019 with the apparently conflicting opinion on January 2018 examination as well as on earlier examinations. Pertinent VA treatment records from the Clarksburg VA medical center (VAMC), dated February 1, 2001 through December 29, 2020, were associated with the record since the December 1, 2020 supplemental statement of the case (SSOC) and not considered by the AOJ. The October 2020 remand instructed for all outstanding, complete VA evaluations and treatment to be secured. A retroactive advisory medical opinion was to be sought after the outstanding VA treatment records were obtained. As this was not done, and the consulting provider did not respond to all Board remand queries, there was not compliance with the Board's remand directives; a remand for corrective action is necessary. See Stegall, 11 Vet. App. at 271. 2. Entitlement to a TDIU rating. When evidence of unemployability is submitted during the course of an appeal of a rating assigned for a disability or such is specifically alleged, a claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although a December 2020 rating decision granted a TDIU rating from October 28, 2019 (the date he met schedular requirements for a TDIU rating), the Veteran had raised the issue of entitlement to a TDIU rating since at least November 2017. See November 2017 VA Form 21-526b. Thus the AOJ was required to issue a SSOC in this matter (as the December 2020 rating decision granted less than was sought). See 38 C.F.R. § 19.31. An SSOC in this matter was not issued. Furthermore, the retroactive TDIU issue is inextricably intertwined with the increased rating issue being remanded (as its posture may change if a retroactive increase in the rating for the psychiatric disability is granted. The matters are REMANDED for the following: 1. Arrange for the record to be returned to the VA examiner who provided the opinion in November 2020 for review and an advisory medical opinion regarding the severity of his service-connected psychiatric disability during the pendency of the appeal. [If that provider is unavailable or unable to provide the opinion sought, forward the record to another appropriate psychologist or psychiatrist for review and the opinion sought (if in such circumstances further examination of the Veteran is deemed necessary, such should be arranged).] The examiner should review the Veteran's claims file, to include VA treatment records associated in December 2020 and the schedular criteria for rating mental disorders. The provider is asked to provide a retrospective opinion regarding the impact the Veteran's psychiatric disability has had on his social and occupational functioning. The provider should note the presence or absence of each symptom in the criteria for ratings above 10 percent (and any symptoms of similar gravity that are not listed). The provider is asked to specifically, to the extent possible, reconcile the opinion regarding such impact offered in October 2019 with the apparently conflicting opinion on January 2018 examination as well as on earlier examinations. If an opinion requested cannot be provided "without resort to mere speculation" there must be explanation why that is so. The examiner must expressly indicate whether the Veteran's own descriptions of his functional impairment be relied upon to form a conclusion, and if not, why not (if, as was suggested, the opinion cannot be given because the provider did not examine the Veteran, and therefore is unable to assess the reliability of his accounts, such examination should be arranged). Complete rationale should accompany all opinions 2. Upon readjudication of the increased ratings for psychiatric disability claim, and following all further development indicated, readjudicate the claim for a retroactive TDIU rating, considering that determination and what is added from any further development, and issue a SSOC if the entire benefit sought on appeal is not granted. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.