Citation Nr: 21030496 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-46 297 DATE: May 19, 2021 REMANDED Entitlement to service connection for an acquired psychological disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to October 1991, with additional service in the Reserves from November 1991 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision by the Department of Veterans Affairs (VA). This case was remanded in December 2020 for further development; it has since been re-assigned to the undersigned. The issues regarding rating reductions for the Veteran's service-connected maxillary sinusitis and discoid lupus erythematosus were opted in to the Appeals Modernization Act (AMA) legal framework pursuant to a May 2021 AMA notice of disagreement (VA Form 10182) filed within sixty days of a March 2021 supplemental statement of the case (SSOC). See 38 C.F.R. § 3.2400(c)(2); see also 38 C.F.R. § 20.202(a) (stating that the Board must construe a notice of disagreement in a liberal manner). As a result, those issues will be the subject of a future Board decision, if otherwise in order. The Board notes that it previously found that the current matter of entitlement to service connection for an acquired psychological disorder was not a request to reopen a previously denied claim. See December 2020 remand. 1. Entitlement to service connection for an acquired psychological disorder. During a February 2019 VA examination, the Veteran reported that she experienced depression during service associated with marital problems. She also reported that right after the military, while she was in the Reserves, she attempted to commit suicide due to her problems with her husband. See, e.g., June 2013 VA treatment records. Medical records from her time in the Reserves are not of record and must be sought on remand. A February 2021 VA examiner diagnosed posttraumatic stress disorder (PTSD), although previous examiners had all diagnosed depressive disorder. See, e.g., March 2018 VA examination. The February 2021 VA examiner opined it was less likely than not that the Veteran's PTSD was related to service but relied on the absence of medical evidence in service treatment records (STRs) and did not address the Veteran's lay report of symptoms during service. As a result, the opinion is inadequate and remand for a new examination is necessary. As discussed in the last Board remand, the Veteran's VA treatment records reflect that she had ongoing depression due, at least in part, to her health problems. See, e.g., August 2018 VA treatment records. The February 2021 VA examiner opined it was less likely than not that the Veteran's PTSD was caused or aggravated by her service-connected fibromyalgia, stating that the Veteran reported that her symptoms were attributed to marital abuse and sexual harassment during service. These opinions are inadequate because they do not discuss the VA treatment records indicating her health is related to her depression. As a result, remand for a new examination is necessary on this basis as well. 2. Entitlement to TDIU. The record reflects that the Veteran applied for Social Security Administration (SSA) disability benefits. See March 2016 VA treatment records. Because her SSA records may reasonably contain information relating to the issue on appeal, remand is required to obtain her SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from January 2021 to the present. 2. The AOJ should request directly from the SSA relevant records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 3. The AOJ should obtain STRs from the Veteran's time in the Reserves. 4. After the above development in the first three directives is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any acquired psychological disorder. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all acquired psychological disorders present during the appeal period (from April 2018). (b.) For each psychological disorder diagnosed, is it at least as likely as not (50% or greater probability) that the disorder was either caused or aggravated by the Veteran's service-connected fibromyalgia? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss VA treatment records indicating that the Veteran's depression is related to her health. (c.) For each psychological disorder diagnosed, is it at least as likely as not (50% or greater probability) that the disorder was either incurred in or otherwise related to the Veteran's service? Please explain why. The examiner may not rely solely on the absence of evidence during service and must discuss the Veteran's report of marital abuse during service. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.