Citation Nr: 0812207 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 02-14 366 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 30 percent for anxiety and dysthymia. 2. Entitlement to an increased (compensable)e rating for symptomatic dermagraphism with chronic urticaria associated with angiodema. REPRESENTATION Appellant represented by: Francisca Santiago, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from May 1966 to January 1970. This appeal to the Board of Veterans' Appeals (Board) initially arose from a December 2001 rating decision in which the RO recharacterized the veteran's service-connected disability (previously diagnosed as psychological factors affecting a physical condition) as two separate disabilities: (1) anxiety and dysthymia and (2) symptomatic dermagraphism with chronic urticaria associated with angiodema. At that time, the RO assigned a 30 percent rating for the psychiatric disability and a 0 percent (noncompensable) rating for the skin disability, respectively, and denied a higher rating for eithe3r disability. In March 2002, the veteran filed a notice of disagreement (NOD); and the RO issued a statement of the case (SOC) in July 2002. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in August 2002. In December 2002, the RO issued a supplemental SOC (SSOC) reflecting the continued denial of higher ratings.. In June 2003, the veteran testified during a hearing before an Acting Veterans Law Judge (AVLJ) at the RO; a copy of the hearing transcript is associated with the record. In August 2005, the Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. After accomplishing further action, the RO continued the denial of higher ratings (as reflected in a May 2006 SSOC) and returned these matters to the Board. / In an October 2006 letter, the Board apprised the veteran that the AVLJ that conducted his 2003 hearing was no longer employed with the Board, and informed him of his right to another hearing. In a November 2006 response, the veteran indicated that he wanted another hearing before a Veterans Law Judge at the RO (Travel Board). In December 2006, the matters on appeal were remanded to the RO for a Travel Board hearing. In February 2007, the veteran and his spouse testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. During that hearing, the veteran submitted, along with a waiver of initial RO jurisdiction, additional documentary evidence. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2007). For the reasons expressed below, the matters on appeal are, again, being remanded to the RO via the AMC, in Washington, DC. VA will notify the veteran when further action, on his part, is required. As final preliminary matters, the Board notes that, in an August 2004 statement, the veteran raised a claim for entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for additional heart disability, as a result of VA negligence in failing to treat him for complaints of chest pains. During the February 2008 hearing, the veteran's attorney raised the issue of service connection for post-traumatic stress disorder (PTSD). As the RO has not adjudicated these matters, they are not properly before the Board; hence, they are referred to the RO for appropriate action. REMAND Unfortunately, the claims file reflects that further RO action on the appeal is warranted, even though such will, regrettably, further delay an appellate decision on these claims. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). Since the passage of the VCAA, various court cases have further defined VA's duty to notify claimants. As held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).. in rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. The AMC provided the general notice required by Dingess/Hartman in a letter dated in March 2006 and readjudicated his claims in a May 2006 SSOC. However, the collective notices of the RO and AMC in the record fail to meet specific notice requirements applicable to claims for increased ratings discussed by the United States Court of Appeals for Veterans Claims (Court) in a recent decision, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate an increased rating claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Regarding notice as required by Vazquez-Flores, the Board notes that the March 2001, September 2005 and the March 2006 VCAA letters collectively provided some of the notice required in (1) and (4) above in relation to his claims for higher ratings. However, these notices did not inform the veteran that he should provide either lay or medical evidence of the effect that worsening of his disability has on his employment and daily life or that should an increase in disability be found a disability rating will be determined by applying relevant diagnostic codes and could be as high as 100 percent. In addition, the RO has not given the general notice required by (2) above. Accordingly, due process requires that notice to the veteran that meets the requirements of Vazquez-Flores-particularly that specified in (1), (2) and (3) above-must be provided. As action by the RO is needed to fulfill the notification provisions of the VCAA (see, e.g., Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003) and Pelegrini v. Principi, 18 Vet. App. 112 (2004)), a remand of these matters to the RO is warranted. On remand, the RO should, through VCAA-compliant notice, give the veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3)) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all pertinent evidence in his possession, and ensure that its notice to the veteran meets the notice requirements of Vasquez Flores, as outlined above. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The Board also finds that specific additional development in this appeal is warranted. During his hearing, the veteran's attorney asserted that the veteran's psychiatric disability warrants a schedular 100 percent rating as it renders him unemployable and that his skin disability warrants a compensable rating. The veteran testified that he had been awarded full disability by the Social Security Administration (SSA) beginning in 2004 and that he was hospitalized by VA in August 2006 due to suicidal thoughts, intent and plan and fear of losing control during a severe episode of urticaria. He presented to the hospital with a towel around his head. He also testified that he has tried to kill his son and hit his wife. During episodes of urticaria, the veteran stated that he feels like he looks like a monster as his mouth, lips and the area around his eyes swell up and he gets deep red welts all over his body. As a result, he cannot leave the house, he stays in his room, his daughter shuns him, and his friends cannot come and visit. The veteran submitted a report from a private psychiatrist, who saw him on three separate occasions in January 2008. This psychiatrist diagnosed the veteran with PTSD, in addition to anxiety and major depressive disorder, and opined that the veteran's mental condition is of such depth and severity as to prevent him from engaging in "any domestic affair", that he should continue on psychiatric treatment for an indefinite period of time, and that his prognosis is very poor. In addition, the Board notes that, while the veteran was afforded VA skin examinations in October 1998 and January 2006, his skin disability was not in an active phase during either examination. However, it appears that, on various occasions in 2000, 2001, and 2004 and during an August 2006 VA hospitalization, his skin symptomatology was in an active phase, for which various antihistamines have been prescribed. The above-noted medical findings, statements, and testimony suggest that the veteran's service-connected psychiatric and skin disabilities may have increased in severity since the veteran's last VA examinations in January 2006. Hence, additional examination is warranted to obtain more contemporaneous findings. See 38 U.S.C.A. § 5103A (West Supp. 2007); 38 C.F.R. § 3.159. The Board also points out that specific to the claim for increase for psychiatric disability, in addition to anxiety and dysthymia, the record reflects diagnoses of various other psychiatric disorders, to include PTSD and major depressive disorder. As noted above, the veteran's private psychiatrist in a January 2008 report opined that the severity of the veteran's psychiatric disability rendered him unable to work. However, as there is no medical opinion of record as to whether it is medically possible to distinguish the effects and impact of his service-connected disability from those attributable to other diagnoses, a medical opinion in this regard is needed. The Board emphasizes that, if it is not possible to distinguish the effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998); 38 U.S.C.A. § 3.102 (2007). Also, as regards the veteran's skin disability, effective August 30, 2002 (during the pendency of the appeal), the rating criteria for evaluating skin disorders found in VA's Rating Schedule at 38 C.F.R. § 4.118 were amended. See 67 Fed. Reg. 49,590-99 (July 31, 2002). The modifications to the Rating Schedule include creation of Diagnostic Code 7825 for urticaria and a revision of Diagnostic Code 7806 for eczema. The new version of the regulations may only be applied as of the effective date of that change. See VAOPGCPREC 3-2000 (2000). However, the veteran's skin disability has been rated as noncompensably disabling under Diagnostic Codes 7806, 7817-7899 (in effect prior to August 30, 2002), evaluated by analogy to dermatitis or eczema, and as noncompensably disabling under Diagnostic Code 7817 (effective since August 30, 2002), evaluated by analogy to exfoliative dermatitis (erythroderma). See 38 C.F.R. § 4.118 (in effect prior to and since August 30, 2002). The Board notes that angioneurotic edema (angiodema) has been associated with the veteran's urticaria and, according to the SSA's January 2006 disability determination, he has had his vocal cords operated on. Thus, the Board finds that the veteran's symptomatic dermagraphism with chronic urticaria associated with angiodema may also be evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7118, for evaluating angioneurotic edema, during the entire period under review, and/or under Diagnostic Code 7825, for evaluating urticaria, since August 30, 2002. As such, the VA physician designated to examine the veteran's skin should render appropriate clinical findings that responsive to the applicable criteria for rating the disability. In view of all of the above, the RO should arrange for the veteran to undergo VA skin and psychiatric examinations, by appropriate physicians, at a VA medical facility. The veteran is hereby advised that failure to report for any scheduled VA examination(s), without good cause, shall result in a denial of the claim(s) for increase. See 38 C.F.R. § 3.655(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file any copy(ies) of notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes recent outpatient treatment records from the San Juan VA Medical Center (VAMC) dated from August 1998 to July 5, 2005, with selected treatment records dated from August 25, 2006, to October 6, 2006. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent treatment records since July 5, 2005, especially those pertaining to his August 2006 VA hospitalization, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The RO should also obtain outstanding SSA records. In this regard, as noted above, in a January 2006 decision, the SSA determined that the veteran was unemployable due to both service-connected and nonservice-connected disabilities. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; also, Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the RO should obtain and associate with the claims file copies of all medical records underlying any SSA determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. The Board also points out that the evidence of record shows that the veteran has been treated by several private psychiatrists during the period in question. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, in its notice letter, the RO should request that the veteran provide authorization to enable it to obtain medical records from any private healthcare provider identified by the veteran. As a final point, the Board points out that the medical evidence of record includes the January 2006 SSA determination and reports of private psychiatric evaluations, and other medical records and lay statements that have yet to be translated from Spanish into English (identified in the record by blue tabs). This should be accomplished on remand. The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. 007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the San Juan VAMC all outstanding pertinent records of in-patient and outpatient evaluation and/or treatment for the veteran from July 5, 2005 to the present-to particularly include copies of the veteran's August 2006 hospitalization records. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should request from SSA copies of all medical records underlying any decision awarding disability benefits to the veteran and any other determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. The RO should send to the veteran and his attorney a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should specifically request that the veteran provide authorization to enable it to obtain all outstanding pertinent records from Drs. Wilfredo G. Santa and Ruben Bravo Valverde. The RO should also invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO should ensure that its letter meets the requirements of Vazquez/Flores, cited to above (as appropriate). In particular, the RO must notify the veteran that, to substantiate his increased rating claims that he must provide, or ask VA to obtain, medical or lay evidence showing the effect that worsening or increase in severity of his service-connected skin and psychiatric disabilities have on his employment and daily life. In addition, the RO must provide at least general notice of all possible diagnostic codes under which the veteran's skin and psychiatric disabilities may be rated, to include former Diagnostic Codes 7118 and 7806 and current Diagnostic Codes 7118, 7817 and 7825 under the General Rating Formulas described in 38 C.F.R. § 4.104 and 38 C.F.R. § 4.118 and described in 38 C.F.R. § 4.130. The notice should also explain that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes and could be as high as 100 percent; such notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. As needed, the RO should have any documents in, or added to, the record that are in Spanish translated into English prior to any scheduled examination. All translations should be associated with the claims file. 6. After all available records and/or responses from each contacted entity are associated with the claims file, the RO should arrange for the veteran to undergo VA skin and psychiatric examinations, by appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to each physician designated to examine the veteran, and each examination report should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Each examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. Skin examination - The physician should describe the veteran's symptomatic dermagraphism with chronic urticaria associated with angiodema. Specifically, the examiner should indicate whether the veteran has attacks of angioneurotic edema with or without laryngeal involvement and, if so, the duration (1 to 7 days or lasting longer) and frequency (once or twice a year, twice to 4 times a year, or 5 to 8 times a year). The examiner should also indicate whether the veteran has recurrent episodes of urticaria; and, if so, whether such episodes are debilitating; whether they occur at least four times during any 12- month period, and whether they respond to treatment with antihistamines or sympathomimetics or require continuous or intermittent systemic immunosuppressive therapy for control. Should the skin examiner find that the veteran's symptoms are analogous to exfoliative dermatitis (erythroderma), the examiner should indicate the extent of any involvement of the skin; and, if so, whether there is generalized involvement of the skin, whether there are systemic manifestations (such as, fever, weight loss and hypoproteinemia), the specific type of therapy used for control (systemic therapy, such as, therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA or UVB treatments, or electron beam therapy or topical therapy), the duration of such therapy used during any 12-month period (less than 6 weeks or 6 weeks or more), or whether such therapy has been constant or near-constant. The examiner should specifically comment upon the impact of veteran's service-connected skin condition on his employability. Psychiatric examination - The psychiatrist should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. The examiner also should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the veteran's service-connected anxiety and dysthymia, and an explanation of what the score means. The examiner should specifically comment upon the impact of this condition on his employability, either alone or in conjunction with the veteran's service- connected skin disability. The psychiatrist should also offer an opinion as to whether it is possible to distinguish the symptoms and effects of the veteran's service-connected anxiety and dysthymia, from those attributable to any nonservice-connected psychiatric disability (to include PTSD, major depressive disorder and/or any other diagnosed mood disorder). If it is not medically possible to do so, the psychiatrist should clearly so state, indicating that the above-noted findings are indicative of the veteran's overall psychiatric impairment. 7. If the veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. 8. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the claims for higher ratings. If the veteran fails, without good cause, to report to any scheduled VA examination(s), in adjudicating the claim(s) for increase, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate each claim in light of all pertinent evidence and legal authority. 10. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).