Citation Nr: 0212852 Decision Date: 09/24/02 Archive Date: 10/03/02 DOCKET NO. 00-23 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased evaluation for schizophrenia, paranoid type, currently rated as 50 percent disabling. 2. Entitlement to a total disability rating based on unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eric S. Leboff, Associate Counsel INTRODUCTION The veteran had active service from January 1971 until January 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2000 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama, which initially denied the benefit sought on appeal. During the course of the veteran's appeal, he moved from Alabama to Michigan, and the RO in Detroit, Michigan has assumed jurisdiction over the claim. The Board further notes that, in his November 2000 substantive appeal, the veteran expressed a desire for a hearing before a Member of the Board. However, in correspondence dated August 2001, that request was withdrawn. The RO denied entitlement to a total disability rating based on unemployability due to service connected disability in September 2000. In his November 2000 substantive appeal on the increased rating issue, the veteran stated that he had not been able to work for 4 and a half years due to his disability. The Board construes this statement to be a notice of disagreement (NOD) to the September 2000 rating action on the TDIU issue and the matter will be further addressed in the Remand that follows this decision. FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate his claim, and has obtained and fully developed all evidence necessary for the equitable disposition of the claim. 2. The veteran's schizophrenia, paranoid type, is currently productive of complaints of nightmares, paranoid and suicidal ideations, mild depression, intrusive thoughts, and auditory and visual hallucinations; objective findings reveal near- continuous depression, mild impairment of attention, concentration and short-term memory, with average overall intelligence, abstraction ability and no evidence of a thought disorder, with Global Assessment of Functioning scores of 50 and 55. CONCLUSION OF LAW The schedular criteria for an evaluation of 70 percent for schizophrenia, paranoid type, have been met. 38 U.S.C.A. § 1155 5103A, 5107(b) (West 1991 & Supp. 2001); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. § 4.130, Diagnostic Code 9203 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial matters Duty to notify/assist There has been a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2002). The legislation has eliminated the well- grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) that is effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. The United States Court of Appeals for Veterans Claims (Court) held in Holliday v. Principi, 14 Vet. App. 280 (2001) that the VCAA was potentially applicable to all claims pending on the date of enactment, citing Karnas v. Derwinski, 1 Vet. App. 308 (1991). Subsequently, however, the United States Court of Appeals for the Federal Circuit held that Section 3A of the VCAA (covering the duty to notify and duty to assist provisions of the VCAA) was not retroactively applicable to decisions of the Board entered before the effective date of the VCAA (Nov. 9, 2000). Bernklau v. Principi, No. 00-7122 (Fed. Cir. May 20, 2002); See also Dyment v. Principi, No. 00-7075 (Fed. Cir. April 24, 2002). In reaching this determination, the Federal Circuit appears to reason that the VCAA may not apply to claims or appeals pending on the date of enactment of the VCAA. However, the Federal Circuit stated that it was not reaching that question. The Board notes that VAOPGCPREC 11-2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of enactment. Further, the regulations issued to implement the VCAA are to be applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department and regulations of the Department are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). For purposes of this determination, the Board will assume that the VCAA is applicable to claims or appeals pending on the date of enactment of the VCAA. The Board finds that while the VCAA was enacted during the pendency of this appeal, and thus, has not been considered by the RO, there is no prejudice to the veteran in proceeding with this appeal, as the requirements for the VCAA have already been met. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (when the Board addresses a matter not addressed by the RO, the Board must provide an adequate statement of reasons and bases as to why there is no prejudice to the veteran). Regarding the VCAA, the Board finds that the veteran was provided adequate notice as to the evidence needed to substantiate his claim, which included copies of the rating actions, a statement of the case issued in October 2000 and a supplemental statement of the case issued in July 2001. In this regard, in June 2000, the RO contacted the veteran and notified him of the evidence needed to establish entitlement to the benefit sought, and what the RO would obtain, as well as what evidence was needed from the veteran and what he could do to help with his claim. He was also notified in May 2001 of what he needed to do concerning medical records that the RO was unable to secure. No further assistance in this regard appears to be warranted. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO also made satisfactory efforts to ensure that all relevant evidence had been associated with the claims file. As a result of such efforts, the file now contains VA outpatient treatment records dated from August 1999 to February 2001. Additionally, the veteran was afforded a VA psychiatric examination in July 2000 in connection with his claim. Finally, the claims file contains treatment reports dated from April 1998 to June 1998 from the Jewish Vocational Service. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file, and the veteran has not contended, that there are additional relevant records that have not yet been obtained. Thus, the obligation that the RO provide the claimant with any notice about how the responsibilities are divided between VA and the claimant in obtaining evidence is now moot. Relevant law and regulations Increased disability ratings - in general Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(a), 4.1 (2001). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2001). Specific schedular criteria for rating mental disorders Schizophrenia, paranoid type, is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9203 (2001). The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100% - Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 70% - Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50% - Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 30% - Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 10% - Occupational 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 continuous medication. 0% - A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9203 (2001). GAF Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 71 to 80 is defined as transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) or no more than slight impairment in social, occupational or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), for rating purposes]. Factual background The veteran participated in vocational assessment program at the Jewish Vocational service from April 1998 until June 1998. The veteran had difficulty interacting with others at the beginning of the program but by the end he was much more at ease and friendly as he went about his duties. A September 1999 VA worksheet indicated the veteran's risk factor for suicide. That record noted continual hallucinations, moderate anxiety, mild hostility and moderate depression. The report indicated that the veteran had constant suicidal thoughts, with a specific plan. It further indicated one or more previous suicide attempts, of moderate lethality. Overall, the veteran was assessed a Level II risk factor, representing moderate risk of suicide. An October 1999 VA treatment report noted that the veteran was doing well in school but was somewhat overwhelmed with the workload. His sleep and appetite were good. There was no change in his baseline organic hallucinosis, and no other psychotic symptoms. He denied other than situational depression. A November 19, 1999, VA treatment report noted that the veteran had left his home after conflict with his girlfriend. The veteran was not suicidal and had insight to attempt to calm down and make decisions after getting decent sleep. A treatment report dated November 23, 1999, indicated that the veteran was no longer living with his girlfriend, as there was friction regarding the veteran's transsexualism. The report noted that the veteran would attempt to continue his coursework in Fine Arts in Cincinnati. The veteran's artwork showed significant talent. The veteran reported poor sleep and a good appetite. His hallucinations were manageable. He denied suicidal and homicidal thoughts. A report dated one week later noted that the veteran had become increasingly suicidal over the last few days, mostly as a result of criticisms made by the veteran's mother. The veteran was pursuing a reconciliation with his girlfriend. Dysthymia and organic hallucinosis were diagnosed. A December 1999 report noted that the veteran was much calmer after he and his girlfriend agreed to have more open communication. The veteran's sleep was better and the veteran had no suicidal thoughts. The diagnoses were dysthymia and organic hallucinosis. A January 2000 VA treatment report noted diagnoses of hallucinosis secondary to substance dependence, polysubstance dependence in remission for 20 years, dysthymia and transsexualism. A February 2000 VA treatment report noted the veteran's mood to be stable and upbeat. He had chronic auditory hallucinations, which were at best baseline and which were easily ignored. He had continued improvement in his communication with his girlfriend, though he still felt that he could not express his transsexual feelings easily for fear of misunderstanding or even anger or irritation. The veteran stated that this was frustrating for him, but was tolerable. He was diagnosed with dysthymia, hallucinosis secondary to polysubstance abuse, in remission for 20 years, and transsexualism. A March VA 2000 treatment report noted that the veteran was intermittently suicidal, without plan or intent. The veteran had increasing depression. The veteran also reported a worsening of his hallucinosis, but usually only with severe stress. The assessment was dysthymia, severe, hallucinosis due to substance dependence, in remission 20 years and transsexualism. A May 2000 VA treatment report listed a GAF score of 50. A June 2000 VA treatment report noted depression. The veteran was not suicidal at that time. In July 2000, the veteran was examined by VA. The examiner noted that the claims file had been reviewed. The veteran's medical history was remarkable for drug abuse up until twenty years ago. The report indicated that such abuse included hallucinogens such as LSD and mescaline, of which the veteran used over 100 times. Cocaine and amphetamine use over a 15- year period was further noted, along with heroin addiction in the 1960s and 1970s. His history was also remarkable for being raped and beaten by 3 men around 1973. The veteran indicated that he continued to relive that event in his memories and nightmares. It was noted that the veteran had made 8 suicide attempts, usually by overdose. It was noted that the veteran was attending school full time in a Bachelor of Fine Arts Program at AUM. The veteran reported that he enjoyed going out to movies and to dinner and that he and his girlfriend enjoyed shopping together. The veteran presented in July 2000 with subjective complaints of depression manifested by crying spells. He also complained of difficulty sleeping, nightmares, and anxiety manifested by impatience, anger and irritability. Intrusive thoughts were also reported, along with daily suicidal tendencies. He experienced daily auditory and visual hallucinations. Finally he experienced significant paranoid ideation. It was noted that the veteran did not want to leave his house. The veteran noted that his paranoia had lessened over time. Objectively, the veteran had mild impairment of attention and concentration. There was also some impairment of short-term memory. His abstract verbal reasoning and his overall intelligence were average. Regarding his hallucinations, the veteran heard derogatory voices, making commands. It was not clear to the examiner whether his reported visual hallucinations were distinguishable from nightmares. The veteran's paranoid ideation involved mild delusions that people were trying to harm him. Regarding suicidal ideation, the veteran had a suicide contract with his therapist. He denied present suicidal ideation but reported past homicidal ideation. The veteran also reported intrusive thoughts relating to his being raped in 1973. The veteran had difficulty with anger. He had difficulty establishing closeness with others. The examiner noted that the veteran continued to meet the criteria for paranoid schizophrenia. The veteran appeared to accept his auditory hallucinations and did not react to them with distress, nor did he heed them. There was no evidence of a thought disorder or disorganized speech or behavior. The veteran showed some evidence of PTSD in relation to being raped and beaten in 1973, but the criteria were not completely satisfied. The veteran was found to have significant depressive symptoms, including depressed mood, insomnia, low energy and feelings of hopeless about the future. His level of symptomatology was moderate. The examiner concluded by remarking that the veteran did not appear to be completely unemployable, but noted that his experience with hallucinations and his paranoia clearly interfered with his ability to interact with co-workers and supervisors and to maintain a job for a significant length of time. His gender identity disorder also interfered with his employment prospects. The diagnoses were schizophrenia, paranoid type, female hormone treatment and financial difficulties and social isolation. He was assigned a GAF score of 55. A November 2000 VA treatment report noted that the veteran was not suicidal. A December 2000 VA treatment report noted that the veteran's home situation was "mixed," due to his transsexualism. Other diagnoses included dysthymia and hallucinosis. In a January 12, 2001 VA treatment report, the veteran denied suicidal thoughts. A report dated later that month, on January 29, 2001, indicated that the veteran was nearly tearful with some suicidal thoughts. There was no plan or intent. A February 2001 VA treatment report further noted suicidal thoughts, without plan or intent. The diagnoses at that time were dysthymia, hallucinosis secondary to substance abuse and alcohol dependence in remission for 21 years. Analysis The veteran seeks a disability rating in excess of the currently assigned 50 percent for schizophrenia, paranoid type. As discussed above, in order for the next higher rating of 70 percent to be assigned, the evidence must demonstrate or approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence) spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The Board finds, for the reasons discussed below, that the medical evidence of record does more nearly approximate the next-higher disability evaluation of 70 percent under Diagnostic Code 9203, but does not warrant a 100 percent rating. In a September 1999 worksheet assessing the veteran's risk factors for suicide, the veteran was found to be at a moderate risk. Indeed, the evidence of record reflects multiple complaints of suicidal ideation in March 2000, July 2000, January 2001 and February 2001. Moreover, a VA treatment report dated September 1999 revealed constant suicidal thoughts. Additionally, at his July 2000 VA examination, the veteran noted daily suicidal tendencies. That report of examination noted 8 past suicide attempts, mostly by overdose. The evidence also reflects near-continuous depression, reflected in numerous treatment reports, including those dated September 1999, November 1999, December 1999, January 2000, February 2000, March 2000, December 2000 and February. Moreover, in March 2000, his dysthymia was deemed "severe." Regarding the veteran's level of occupational impairment, the VA examiner noted in July 2000 that although the veteran did not appear to be completely unemployable, his symptomatology clearly interfered with his ability to interact with co- workers and supervisors, and to maintain a job for a significant length of time. Regarding the veteran's level of social impairment, the July 2000 VA examination noted that the veteran had difficulty with anger and in establishing closeness with others. The record reflects a great deal of instability in the veteran's relationship with his girlfriend. The record also evidenced that the veteran had a strained relationship with his mother, and a November 1999 report showed that the veteran cited his mother as the source of his suicidal ideations at that time. The veteran's GAF scores further support the Board's conclusion that the veteran is entitled to a 70 percent rating pursuant to Diagnostic Code 9203. In May 2000, the veteran was assigned a GAF score of 50, representing serious symptoms or any serious impairment in social, occupational or school functioning. When examined by VA in July 2000, his GAF was 55, reflecting moderate symptomatology. The Board notes that there is little substantive change in the nature of the veteran's complaints between May 2000 and July 2000, and given that suicidal thoughts were voiced on both occasions, the Board finds that the GAF's presented on the whole are reflective of the severity of the veteran's condition. The Board acknowledges that not all of the criteria for a 70 percent evaluation have been shown by the medical evidence. For example, the veteran did not exhibit illogical, obscure, or irrelevant speech or impaired impulse control. However, as stated in 38 C.F.R. § 4.21, it is not expected that every single symptom be exhibited. Thus, based on the symptomatology described above, the Board finds that the evidence shows the veteran's PTSD to most nearly approximate a 70 percent evaluation under Diagnostic Code 9203. In finding that a disability evaluation of 70 percent reflects the severity of the veteran's schizophrenia, paranoid type, the Board finds that the next-higher rating of 100 percent is not warranted here. The evidence is void of gross impairment in thought processes. Indeed, no evidence of a thought disorder was detected upon VA examination in July 2000. Additionally, the evidence does not establish grossly inappropriate behavior, or the intermittent inability to perform activities of daily living, including the maintenance of personal hygiene. Instead, the evidence shows that the veteran was capable of attending classes toward a degree in graphic art design. Moreover, the evidence similarly failed to show disorientation to time or place, or memory loss for names of close relatives, one's occupation, or one's own name. In determining that a 100 percent rating pursuant to Diagnostic Code 9203 is not justified, the Board does acknowledge the medical evidence demonstrating daily auditory and visual hallucinations. However, a February 2000 VA treatment report noted that his hallucinations were at best baseline and were easily ignored. The July 2000 report of VA examination noted that the veteran appeared to accept his auditory hallucinations and did not react to them with distress, nor did he heed them. Thus, the veteran's hallucinations, which are only one of the factors to consider in assigning a 100 percent evaluation, have not been shown to result in a total impairment in occupational and/or social functioning. Furthermore, although the evidence notes 8 previous suicide attempts, it also noted that most were caused by drug overdoses. As the veteran has been drug-free for over 20 years, those earlier attempts occurred long before the present claim, and therefore do not serve to justify a 100 percent rating. Moreover, the Board finds that the intermittent findings of current suicidal ideation best reflect an evaluation of 70 percent, rather than 100 percent. Finally, while the evidence does reveal that the veteran's schizophrenia, paranoid type, does place some limits on his uemployability, this has been contemplated in the award of a 70 percent rating under Diagnostic Code 9203. As noted above, while the veteran is not employed, he is a full time student. Moreover, the evidence does not reflect that necessitated any frequent periods of hospitalization. For these reasons, application of the regular schedular standards is not rendered impracticable. Hence the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 70 percent rating for schizophrenia, paranoid type, is granted, subject to controlling regulations governing the payment of monetary benefits. REMAND The veteran's statement in his November 2000 substantive appeal on his inability to work may be construed as a notice of disagreement to the September 2000 rating action denying a TDIU. Therefore, this matter is REMANDED to the RO for the following action: The RO should issue to the veteran and his representative a statement of the case on the issue of entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). An appropriate period of time should be allowed for response. Thereafter, if the veteran files a timely substantive appeal, the case should be returned to the Board for further appellate action. The Board intimates no opinion as to the ultimate outcome of this matter. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.