Citation Nr: 0814707 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-01 139 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a disability rating in excess of 50 percent for dysthymic disorder with hysterical features. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from October 1956 to April 1958. Following a March 2005 decision by the Board of Veterans' Appeals (Board) which denied the veteran's claim for an increased disability rating for his dysthymic disorder, he perfected a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In a July 2006 Order, the Court granted a joint motion for remand filed by both parties to the case and vacated the Board's decision, returning the appeal to the Board for further appellate consideration. The Board remanded the matter to the RO in April 2007 for additional evidentiary development. Such development having been accomplished, the veteran's claim is once again before the Board for appellate review. The veteran's attorney filed argument in support of his appeal in January 2008. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action on his part is required. REMAND Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Following submission of a claim for an increased evaluation, VA must notify the veteran that the evidence required to substantiate the claim includes evidence demonstrating a worsening or increase in the severity of the disability and the effect that worsening has on the claimant's employment and daily life, general notice that a disability rating is determined by application of the relevant Diagnostic Code, of criteria required under the applicable Diagnostic Code or under alternate Diagnostic Codes which would not be satisfied if the claimant demonstrated a noticeable worsening and effects of such worsening on employment and daily life, and of the types of medical and lay evidence which may be relevant to substantiate such contentions. See Vazquez- Flores v. Peake (Vazquez), 22 Vet. App. 37 (2008). In this case, the veteran has not been provided notice of the type of evidence he can submit to substantiate his claim for a higher disability rating in the context of the particular rating criteria which govern psychiatric disabilities such as dysthymic disorder. According to the report of a February 2004 VA examination, the veteran receives Social Security benefits, in addition to his VA compensation benefits. If the veteran is currently receiving disability benefits from the Social Security Administration (SSA), the VA has a duty to consider the same evidence considered by that agency in making any decision regarding entitlement to VA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In this regard, earlier records from 1980 and the late 1990's indicate the veteran may have stopped working in the late 1970's. The veteran receives regular and on-going VA treatment for his service-connected psychiatric disorder. The most recent treatment reports of record are dated in 2007. Subsequent treatment reports should be obtained for review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Consistent with the Court's holding in Vazquez-Flores, the RO should advise the veteran he may submit evidence showing the effects of any worsening or increase in severity his service connected psychiatric disability has upon his daily life, and inform him of the specific criteria contained in the General Rating Formula for Mental Disorders for evaluating his service connected disability. 2. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. The RO should obtain all records of VA medical treatment afforded to the veteran subsequent to December 2007. 4. After the development requested above has been completed, the RO should again review the record, performing any additional evidentiary development which may become necessary following the above actions. If the benefit sought on appeal remains denied, the veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ MICHAEL E. KILCOYNE 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 your appeal. 38 C.F.R. § 20.1100(b) (2007).