Citation Nr: 23011007 Decision Date: 02/22/23 Archive Date: 02/22/23 DOCKET NO. 19-32 766A DATE: February 22, 2023 REMANDED Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with nervous disorder and dysthymic disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1958 to August 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). In July 2022 the Board remanded this matter to obtain the February 2016 VA Mental Disorders Disability Benefits Questionnaire (DBQ) and associate it with the Veteran's claim file prior to adjudication of the claim. The February 2016 VA Mental Disorders DBQ has been associated with the claims file. Therefore, the Board finds that there has been substantial compliance with the Board's July 2022 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with nervous disorder and dysthymic disorder is remanded. As an initial matter, in the February 2018 NOD, the Veteran phrased the issue on appeal as an "increase to 30%" for his psychiatric disability. See February 2018 Notice of Disagreement (NOD). However, in a December 2017 rating decision, the Veteran's psychiatric disability was assigned a 30 percent disability evaluation, effective December 19, 2014. Therefore, the Veteran seeks a disability evaluation in excess of 30 percent for his psychiatric disability. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A) (2012); 38 C.F.R. § 3.159 (2018). For the following reasons, remand is warranted for a new VA Mental Disorders DBQ, to assess the current level of the Veteran's psychiatric disability. In February 2016 the Veteran was afforded a VA Mental Disorders DBQ. Regarding the Veteran's level of occupational and social impairment due to his psychiatric disability, the medical examiner noted, "[o]ccupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication." See February 2016 VA Mental Disorders DBQ. In August 2017 the Veteran was afforded an Initial PTSD DBQ. Although the medical examiner did not diagnose the Veteran with PTSD, the medical examiner confirmed the diagnosis and reiterated the February 2016 medical examiner's opinion on the Veteran's level of occupational and social impairment. The Veteran has not been afforded a subsequent mental disorder related DBQ since the February 2016 and August 2017 DBQs. Additionally, the evidence of record does not contain statements from the Veteran affirmatively contending a worsening of his psychiatric disability. However, VA treatment records do suggest a possible worsening of the Veteran's dysthymic (depressive) disorder. For example, in a VA medical treatment record (primary care follow-up) dated July 22, 2021, the medical examiner noted "depression stable, the patient denied suicidal and homicidal ideas, but who [sic] has been sad because of the sun and the things that happen in life. Add Sertraline." See July 22, 2021, VA Medical Treatment Record. The same treatment record regarding the Veteran's medication notes, "Sertraline HCL 50MG tab take one-half tablet by mouth every day for 7 days, then take one tablet every day for depression. Id. In a depression screening dated, November 10, 2021, it is noted that the Veteran reported "little interest in or pleasure in doing things," and "feeling down, depressed, or hopeless, for "several days." See November 10, 2021, VA Medical Treatment Record. Thereafter, VA medical treatment records note that the Veteran's depression is "stable" and indicate he is prescribed Sertraline. See March 8, 2022, VA Medical Treatment Record. Prior to the July 22, 2021, record, a VA medical treatment record dated October 2, 2020, notes that the Veteran reported "not at all" when asked if he had "little interest or pleasure in doing things," and "feeling down, depressed, or hopeless." See October 2, 2020, VA Medical Treatment Record. Prior to the October 2, 2020, record, the Veteran's medical treatment records note the Veteran's depression as "stable" and specify, without treatment. See e.g., December 5, 2019, February 26, 2019, September 14, 2016, VA Medical Treatment Records. Apart from the VA medical treatment records discussed above, the medical evidence of record is sparse regarding the current level of severity of the Veteran's psychiatric disability upon which the Board may form the basis for an increased rating evaluation. Considering the length of time since the Veteran's last VA DBQs and that the medical evidence of record indicates a worsening of the Veteran's depression symptoms since those DBQs, the Board finds that a new VA examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); 38 C.F.R. § 3.327(a). VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. See Peters v. Brown, 6 Vet. App. 540, 542 (1994); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Here, the Veteran's February 2016 VA Mental Disorders DBQ and August 2017 Initial PTSD DBQ were seven and more than six years ago, respectively. Therefore, the VA DBQs cannot be considered thorough or contemporaneous to allow the Board to rely upon its findings. Green, 1 Vet. App. 121, at 124. The Board finds that the medical evidence of record suggesting a possible worsening of the Veteran's psychiatric disability, together with the considerable length of time since his last VA examinations sufficiently trigger the Board's duty to assist. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Accordingly, remand is warranted to afford the Veteran a new VA examination to determine the current level of severity of the Veteran's psychiatric disability. The matters are REMANDED for the following action: 1. Obtain a new VA Mental Disorders DBQ to assess the current level of severity of the Veteran's psychiatric disability. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. All necessary tests and studies should be completed, and all clinical findings reported in detail. If the examiner finds that the Veteran's level of occupational and social impairment due to his psychiatric disability is changed from the finding asserted in the February 2016 Mental Disorders DBQ, the examiner should indicate, if possible, the earliest ascertainable date such change occurred. If the examiner cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information that they have exhausted the limits of current medical knowledge in providing an answer to the questions presented. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.E. Brand, 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.