Citation Nr: 21041817 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 09-14 048 DATE: July 10, 2021 REMANDED Entitlement to an initial disability rating in excess of 30 percent for depression prior to September 14, 2011, and in excess of 70 percent since September 14, 2011, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 14, 2011, is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1993 to March 1994. These matters come before the Board of Veterans' Appeals (Board) from a July 2003 Rating Decision of a Department of Veterans Affairs (VA), Regional Office (RO). The Veteran seeks entitlement to higher initial disability ratings for depression as well as entitlement to a TDIU prior to September 14, 2011. Although the Board regrets the additional delay, these issues must be remanded further evidentiary development consistent with its previous Remand instructions. In its July 2017 Remand, the Board acknowledged that while the Veteran was in receipt of service connection for depression secondary to lower extremity joint disabilities, the claims file also included several VA clinical records prior to 2012 which reflected nonservice-connected diagnoses of a personality disorder (passive-aggressive), antisocial personality, seasonal affective disorder, and posttraumatic stress disorder (PTSD) related to life experiences including killing his brother. However, other records, such as a March 2012 VA Mental Disorders examination report, did not reflect these additional diagnoses of a personality disorder and PTSD. As the Board was uncertain as to whether the March 2012 VA examiner was aware of these diagnoses, or if he did not consider any of the Veteran's current symptoms to be related to such diagnoses, it found that another examination was needed to obtain an opinion which differentiated symptoms and manifestations of the Veteran's service-connected disability from his nonservice-connected disabilities during the entirety of the rating period on appeal. As such, the claim was remanded to obtain an additional VA examination and opinion. Specifically, the Board directed the VA examiner to consider the diagnoses of personality passive-aggressive disorder, antisocial personality, seasonal affective disorder, intermittent explosive disorder, and PTSD, as shown in various VA treatment records, including in October 2002, May 2003, October 2003, June 2008, August 2009, and October 2010 VA clinical records, and a 2006 Social Security Administration (SSA) record. Pursuant to the Board's July 2017 Remand directives, the Veteran was provided with another VA Mental Disorders examination by a Logistics Health Incorporated (LHI) contractor in October 2017. At that time, he was diagnosed as having chronic, persistent depressive disorder secondary to chronic pain; however, the examiner did not attempt to differentiate the symptoms caused by the service-connected depression from nonservice-connected psychiatric disorders. Rather, the examiner merely "checked off" a box indicating that the Veteran did not have more than one mental disorder diagnosed. As such, in a November 2018 decision, the Board determined that the October 2017 VA examination was inadequate to the extent that the examiner did not discuss, or attempt to differentiate, the Veteran's symptoms due to his service-connected depression from the symptoms due to his nonservice-connected mental disabilities, and remanded the matter so that an adequate addendum VA medical opinion could be obtained. Specifically, the Board's November 2018 Remand directed that the claims file be returned to the LHI contractor who examined the Veteran's depression symptoms and authored the October 2017 VA examination report, and requested that she again review the claims file and respond to the Board's inquiries regarding the Veteran's various diagnosed psychiatric disorders. If that LHI examiner deemed it necessary or was otherwise unavailable, then the Board's Remand directed that the Veteran be scheduled for another VA examination to evaluate the current severity of his psychiatric symptoms. Pursuant to the Board's November 2018 Remand directives, a VA Compensation and Pension Exam Inquiry indicated that a VA addendum opinion was requested from the October 2017 LHI contractor on September 8, 2019. However, a subsequent VA Compensation and Pension Exam Inquiry added to the record on September 13, 2019, indicated that the requested addendum opinion was cancelled by Medical Administration Services (MAS) because the examination was requested at a different location. There is no documentation in the record as to why the requested addendum opinion was cancelled and requested at a different location. The next Exam Scheduling Request, added to the claims file over two months later on November 22, 2019, indicated that a new request for an addendum opinion was sent to Veterans Evaluation Services (VES), a different VA examination contractor. Four days later, on November 26, 2019, an Exam Scheduling Request Modification indicated that the entire examination scheduling request was cancelled "at the request of Site/VA." On the same day, a new "Exam Scheduling Request" was created and sent to LHI, the VA examination contractor responsible for the initial October 2017 examination report at issue. However, an Exam Scheduling Request Clarification Response also added to the claims file on that day again directed the addendum opinion request to VES and indicated that since VES had not seen the previous examination in which a medical opinion was now required, the VES examiner would be unable to render a medical opinion without examining the Veteran in person. Fifteen days later, on December 11, 2019, a final document was added to the claims file indicating that a scheduled examination by an LHI contractor was canceled because the Veteran failed to report. First, the Board emphasizes that the record is devoid of documentation reflecting that the Veteran was provided with actual notice of any scheduled examination. Rather, internal VA documents reflect that the addendum opinion request was repeatedly created, cancelled, and then recreated for different examination contractors over a span of two months, only to be cancelled two weeks later on account of the Veteran's "No Show." There is no correspondence in the claims file notifying the Veteran that an in-person examination was contemplated. Moreover, in a September 2020 statement, the Veteran stated he did not receive notification of the scheduled examination. The examination cannot be cancelled based on a lack of response from the Veteran to a request for availability. The examination must be scheduled, and the Veteran notified of the date, time, and location of the scheduled examination, to provide the Veteran the opportunity to attend. The Veteran is hereby informed that it is his responsibility to report for any scheduled examinations and that failure to attend a scheduled examination could result in the denial of the claims. 38 C.F.R. § 3.655. Moreover, the record is devoid of any explanation as to why an in-person examination of the Veteran was necessary to obtain the addendum opinion requested in the Board's November 2018 Remand. The author of the October 2017 VA Mental Disorders examination report was an LHI contractor. A review of the record suggests that the addendum request was erroneously forwarded to VES, the other examination contract service, at which time a new in-person examination was requested because the Veteran had never been examined by VES. However, it also appears that the addendum request was subsequently rerouted to the LHI contract service. The AOJ's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Id. Here, the Board's November 2018 Remand explicitly found that the October 2017 Mental Disorders examination report authored by an LHI contractor was inadequate in part and directed that an addendum opinion be obtained with respect to the nature of the Veteran's various psychiatric diagnoses. The Board left the decision to schedule an additional in-person examination of the Veteran to the discretion of the October 2017 examiner; if the examiner was unavailable, an examination was to be scheduled. On remand, the claims file should be returned to the LHI contractor who authored the October 2017 Mental Disorders examination report in order to obtain an addendum opinion based on the evidence already of record, to include previous VA examination reports and medical records. If and only if the LHI contractor deems it necessary or is otherwise unavailable, then the Veteran should be scheduled for an appropriate VA examination to evaluate the current nature and severity of his psychiatric symptomatology. All such efforts to notify the Veteran of this examination must be documented in the claims file. If the Veteran does not report to a scheduled examination and the examiner is unable to provide the requested opinions without an in-person examination of the Veteran, then it must be so stated, and the examiner must provide the reasons why the opinions would require an in-person examination. The issue of entitlement to a TDIU prior to September 14, 2011, is inextricably intertwined with the increased rating issue on appeal. Thus, it must also be remanded. The matters are REMANDED for the following action: 1. Return the claims file to the LHI contractor who authored the October 2017 VA Mental Disorders examination report and request that she review the claims file and respond to the below inquiries regarding the Veteran's various psychiatric diagnoses in an addendum opinion. If that LHI examiner deems it necessary or is otherwise unavailable, then schedule the Veteran for an appropriate VA examination to evaluate the current nature and severity of his psychiatric symptoms. If a new examination is necessary, then all efforts to notify the Veteran of a scheduled examination must be documented in the claims file. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. In the event that the Veteran fails to report for a scheduled examination, the examiner must still provide the requested addendum opinion based on the current evidentiary record, or otherwise explain why the requested opinion cannot be obtained without in-person examination of the Veteran. a. Based upon a review of the relevant evidence, history provided by the Veteran, the October 2017 VA examination report, and sound medical principles, the examiner should attempt to clarify and differentiate, if reasonably possible, the Veteran's symptoms due to his service-connected depression from the symptoms due to his nonservice-connected mental disabilities. b. In rendering an opinion, the examiner should comment as to the significance of VA and SSA treatment records showing diagnoses of nonservice-connected psychiatric disabilities, including PTSD; antisocial personality disorder; personality passive-aggressive disorder, rule out bipolar spectrum disorder; intermittent explosive disorder; and personality disorder not otherwise specified (NOS), throughout the appeal period since June 2002. The examiner is specifically asked to review the (1) VBMS entry with document type "Medical Treatment Record - Government Facility," received 01/11/2001, at page 1; (2) VBMS entry with document type "VA Examination," received 05/30/2003, at pages 1-5; (3) VBMS entry with document type "Medical Treatment Record - Government Facility," received 04/30/2007, at pages 30-31, 56; (4) VBMS entry with document type "VA Examination," received 08/15/2008, at pages 39-46; and (5) VBMS entry with document type "Medical Treatment Records - Furnished by SSA," received 05/17/2016, at pages 3, 78-81. If the examiner is unable to differentiate between the Veteran's service-connected depression symptoms and his nonservice-connected psychiatric symptoms, then the examiner should provide a rationale as to why this is so, and what, if any, additional evidence would be necessary to differentiate these symptoms. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resorting to speculation, then he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.