Citation Nr: 21030505 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-35 453 DATE: May 19, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent from October 10, 2013 to December 7, 2018, for unspecified depressive disorder with anxious distress (unspecified depressive disorder) is remanded. Entitlement to a rating in excess of 50 percent from December 7, 2018, to September 28, 2019, for unspecified depressive disorder is remanded. Entitlement to a rating in excess of 30 percent from September 28, 2019, unspecified depressive disorder is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the Veteran's claim. As explained below, there has not been substantial compliance the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). During the pendency of the appeal, a June 2020 rating decision granted an increase to 50 percent for unspecified depressive disorder from December 7, 2018 to September 28, 2019. However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial rating in excess of 30 percent from October 10, 2013 to December 7, 2018, for unspecified depressive disorder is remanded. 2. Entitlement to a rating in excess of 50 percent from December 7, 2018, to September 28, 2019, for unspecified depressive disorder is remanded. 3. Entitlement to a rating in excess of 30 percent from September 28, 2019, unspecified depressive disorder is remanded. The Veteran contends that his unspecified depressive disorder warrants higher ratings. Specifically, he contended that the VA examinations did not mention that he experiences panic attacks from two to four times per week, that his disability also affects his mood and motivation, that he rarely leaves his house and that his difficulty establishing and maintaining relationships was inadequately addressed. See NOD (March 2015). He stated that he cannot break out of his "comfort zone and work in the field" that he would desire, because he does not want to interact with people. See Form 9 (July 2016). He stated that he has no friends and reduced contact with his immediate family, and his marital relationship is also strained. Id. He reported difficulty sleeping that results in fatigue at work and forgetting tasks. Id. Specifically with regard to the 2019 VA examination, the Veteran stated that he was inadequately evaluated for a short period of time, and that his disability has not improved and has gotten "slightly worse." See Correspondence (July 2020). To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, the Board finds that the Veteran should be afforded an adequate opportunity to assist in the development of his claim to ensure compliance with its October 2018 remand directives. See Stegall, supra. The Board instructed the Agency of Original Jurisdiction (AOJ) to request the Veteran to provide names and addresses of any and all healthcare providers who treated him for unspecified depressive disorder, upon which the AOJ had to obtain these records. See BVA Decision (October 2018). Subsequent to the Board's October 2018 remand, a development letter requesting the Veteran to either provide any additional private treatment records or complete VA Form 21-4142 for release of those private treatment record was mailed to an address that was not listed in the Veteran's records. See Subsequent Development Letter (July 2019). Notably, no other correspondence has been mailed to that address. It is unclear whether the Veteran has been properly notified of his opportunity to submit additional private treatment records given that the notice letter was not mailed to the latest and updated address of record. The Veteran is reminded that that VA's duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). He should cooperate and assist as requested in the development of his appeal. Second, the Board requested that the Veteran undergoes a new VA examination based on a review of "copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the VA examiner for review." See BVA Decision (October 2018). While the Veteran underwent two VA examinations subsequent to the October 2018 remand, including in December 2018 and September 2019, additional VA treatment records were obtained in May 2020 dating from October 2018 to May 2020. It appears that the VA examiners did not have the benefit of reviewing those records as they had not been obtained and associated with the Veteran's claims file prior to the examinations being conducted. See Stegall, supra. A new VA examination should be conducted on remand. Given that there has not been substantial compliance with the Board's prior remand directives, another remand is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2020 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his unspecified depressive disorder. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected unspecified depressive disorder based on a review of all the VA treatment records and any private treatment records obtained on remand during the appeal period. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms, including panic attacks. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected unspecified depressive disorder alone. 4. 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.