Citation Nr: 0817900 Decision Date: 05/30/08 Archive Date: 06/09/08 DOCKET NO. 97-31 631 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for claimed post- traumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 60 percent for the service-connected post-operative residuals of fistula in ano. 3. Entitlement to an effective date earlier than January 29, 2004 for the total compensation rating based on individual unemployability as due to service-connected disabilities (TDIU). 4. Entitlement to an effective date earlier than January 29, 2004 for Dependents' Educational Assistance (DEA) pursuant to Chapter 35 of Title 38, United States Code. REPRESENTATION Appellant represented by: Sean A. Ravin, attorney WITNESS AT HEARING ON APPEAL C.N. Bash, M.D. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active service from December 1964 to December 1970. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 1997 RO rating action. The Board remanded these issues for further development in March 2000. In December 2002 the Board issued a decision denying service connection for PTSD, a rating in excess of 60 percent for fistula in ano, and entitlement to a TDIU rating. The veteran thereupon appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2003 Order, the Court vacated the Board's decision and remanded the case for development and readjudication under the Veterans Claims Assistance Act (VCAA). The Board thereupon remanded those issues in March 2004 for actions in compliance with the Court's Order. Also on appeal is an October 2005 RO rating action that granted entitlement to a TDIU rating and to DEA, both effective on January 29, 2004. The veteran contends that earlier effective dates should be assigned. A hearing was conducted before the undersigned Veterans Law Judge in March 2006 at the offices of the Board in Washington, DC. The Board remanded these issues for further development of the record in November 2006. The Board's decisions on the claims for earlier effective dates are set forth hereinbelow. The issues of service connection for PTSD and evaluation of service-connected fistula are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will advise the veteran when further action is required on his part. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. During the period March 1, 1996 through January 29, 2004, the veteran was service-connected for fistula in ano, rated as 60 percent disabling, and for dysthymic reaction/generalized anxiety disorder secondary to the fistula in ano, rated as noncompensable. 3. Prior to January 29, 2004, the veteran's service- connected disabilities alone, when taken in conjunction with his education and occupational experience were not shown to have precluded him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 29, 2004 for the TDIU rating are not met. 38 U.S.C.A. § 5107, 5103, 5103A, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.151, 3.157, 3.159, 3.303, 3.340, 3.341, 3.400, 4.16 (2007). 2. Chapter 35 DEA benefits may not be paid prior to January 29, 2004. 38 U.S.C.A. § 5113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 21.3040, 21.3046 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims herein decided has been accomplished. The issues herein decided (earlier effective dates for a TDIU rating and DEA) are "downstream" issues that arose only after issuance of the October 2005 rating decision on appeal. A claim for a TDIU is in essence a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). Accordingly, duties to notify and assist for effective date for a TDIU rating are analogous to those duties for effective date for a disability rating. In March 2006, the RO sent the veteran a letter advising him of how VA establishes disability ratings and effective dates for a disability. In December 2007, the RO sent the veteran a letter advising him that development was still ongoing on his claims for earlier effective dates. The letter advised the veteran that in order to support his claim for earlier effective date, the evidence must show that the starting date for the grant of benefits should be before the date previously assigned. The letter provided examples of evidence that would tend to support the claim; the veteran had an opportunity to respond before the file was forwarded to the Board for appellate review. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claims for earlier effective date and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the December 2007 letter cited above satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The December 2007 letter advised the veteran that VA is responsible for getting relevant records in the custody of any Federal department or agency, including service records, VA treatment records, and records from other Federal agencies such as Social Security Administration (SSA) records. The letter also stated that VA would make reasonable efforts to get evidence on the veteran's behalf from non-Federal entities if provided authorization to do so. In December 2007 letter specifically asking the veteran, "If there is any other information or evidence that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained, all four content-of-notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. This is logical, since the issues herein decided are "downstream" issues. However, the Board finds that any arguable lack of full pre- adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any arguable delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed before the case was forwarded to the Board for appellate review. As indicated, the RO gave the veteran notice of what was required to substantiate the claims, and the veteran has been afforded ample opportunity to submit such information and/or evidence. Neither in response to the letter cited hereinabove nor at any other point during the pendency of this appeal has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below-that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that, in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria and information regarding the effective date that may be assigned. The rating formulae are not relevant to claims for TDIU and DEA, and, as noted above, the letters in March 2006 and December 2007 discussed assignment of effective date. There is accordingly no chance of prejudice under the notice requirements of Dingess. In the recent case of Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008) the Court stated that adequate notice in a rating claim requires all four of the following questions be answered in the affirmative. (1) Do the notice letters inform the claimant that to substantiate the claim he or she must provide, or ask VA to obtain, medical or lay evidence showing a worsening or increase in severity and the effect that worsening has had in his or her employment and daily life? (2) Is the claimant rated under a diagnostic code (DC) that contains the 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 that worsening has had on the claimant's and daily life (such as a specific measurement or test result)? If so, do the notice letters provide at least general notice of that requirement? (3) Do the notice letters advise the claimant that if an increase in disability is found, a disability rating will be determined by applying relevant DCs, which typically provide a range in severity from 0 percent to 100 percent (depending on the disability involved), based on the nature of the symptoms for which disability compensation is being sought, their severity and duration, and their impact on employment and daily life? (4) Do the notice letters provide examples of the types of medical and lay evidence the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased rating - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability? If the answer to any of the four elements listed above is negative, absence of prejudice to the veteran may be shown by any of the following: (1) the claimant had actual knowledge of what was necessary to substantiate the claim; (2) a reasonable person could be expected to understand from the notice what was necessary to substantiate the claim; (3) the benefit claimed is precluded as a matter of law. In this case, the veteran's arguments, as articulated by his attorney in correspondence to VA and in testimony before the Board, have stressed the impact of the service-connected disabilities on the veteran's overall health and employability. The Board accordingly finds that the veteran has demonstrated actual knowledge of the requirements for higher rating as articulated in Vazquez-Flores. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claims for earlier effective dates decided hereinbelow. The veteran's service treatment record (STR) and post-service VA and non-VA medical records are on file. The veteran has not identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having additional records that should be obtained before the claim is adjudicated. The RO diligently pursued the veteran's SSA file. The SSA notified the RO in writing in September 2005 that after an exhaustive and comprehensive search no file for the veteran could be located. The veteran was afforded several VA medical examinations before and after January 2004 in the course of evaluation of his service-connected disabilities. As the issue now before the Board relates to the veteran's entitlement to benefits prior to January 2004, further medical examination at this time would not provide any probative evidence. The Board accordingly finds that remand for new examination is not required at this point. See Glover v. West, 185 F.3d 1328, 1332 (Fed. Cir. 1999) (VCAA does not require a VA medical examination unless the medical evidence of record is not adequate or sufficient for the appropriate legal action or unless there has been a material change in the disability). The veteran's attorney was afforded a hearing before the Board in March 2006, during which he introduced oral argument and witness testimony in support of the veteran's claim. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims herein decided. II. Analysis The RO granted the veteran a TDIU rating and entitlement to DEA, both effective on January 29, 2004. The effective date was assigned based on the RO's finding that January 29, 2004 was the date the veteran was shown to be unemployable due to his service-connected psychiatric disorder (dysthymic reaction and generalized anxiety disorder); it is also the effective date for an increase in disability rating for the service-connected psychiatric disorder from 10 percent to 50 percent. The veteran asserts through his attorney that the benefits should be granted from an earlier date, based on a contention that the veteran's other service-connected disability - fistula in ano - had rendered him unemployable since 1983. A dependent's entitlement to DEA is derived inter alia from a veteran who has a permanent and total service-connected disability. Thus, effective date for eligibility for DEA will be the same as the veteran's effective date for eligibility for TDIU rating. The claim for a TDIU rating is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim is an alternative way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). Generally, the effective date of an evaluation and award for compensation based on a claim for increase shall be the date of receipt of the claim, or the date that the entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If, however, it is factually ascertainable that an increase in disability had occurred within the one year prior to receipt of the claim, the veteran may have the earlier effective date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The veteran's claim for a TDIU rating was received at the RO on June 20, 1996. The Board's review for a TDIU rating may consider evidence beginning one year prior to that date. However, as a threshold matter, when the service-connected disability rating is less than 100 percent, assignment of a TDIU rating requires inability to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, and that, if there are two or more disabilities, at least one is ratable at 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The veteran did not meet the threshold criteria of a single service-connected disability ratable at 60 percent (post- operative anal fistula) until March 1, 1996. He has accordingly met the threshold percentage requirement for award of a TDIU rating since that date. 38 C.F.R. § 3.400(o). The veteran's formal claim, filed in June 1996, asserts that he last worked in 1986, for the Electric Boat Division of General Dynamics Corporation, and left that job because he was bothered by the service-connected anal fistula and by work-related cervical and lumbar spine injuries (incurred while working for General Dynamics). An accompanying VA Form 21-4138 (Statement in Support of Claim) asserts that the veteran was frequently late to work because his lack of bowel control made it impossible for him to leave the bathroom in the morning. General Dynamics/Electric Boat executed a VA Form 21-4192 (Request for Employer Information) in August 1996 showing that the veteran's dates of employment were June 27, 1977 through December 31, 1991; however, the veteran's last actual day of work was noted to be on December 3, 1986. The reason for termination of employment is shown as "administrative termination." The medical treatment records from General Dynamics/Electric Boat during the period from June 1977 to May 1994 document one episode of complications due to recurrent perianal abscesses: absence from work in June-August 1983 for surgery at Our Lady of Fatima Hospital for excision of fistula with sphincterectomy and subsequent postoperative care. The veteran subsequently returned to work. The employer's medical records document a number or minor workplace injuries, as well as a neck injury in 1984 and another neck injury with head trauma on December 2, 1986, following which the veteran ceased working. The veteran was evaluated by a company physician in early 1987 as unable to work at either his regular duties or restricted duties due to contusion of scalp and lumbar/cervical sprain, but in June 1987 a company physician classified the veteran as able to return to work on light duty. The veteran apparently declined to return to work, citing continued residual pain, and instead sued General Dynamics/Electric Boat for a number of residual disabilities, including carpal tunnel, exposure to rust particles in the employer's "grind shop," neck and lower back pain with radiculopathy (pain and weakness) to the bilateral hands and arms. There is no indication as to the outcome of the lawsuit. The veteran had a VA compensation and pension (C&P) examination in December 1990, and testified before the RO's hearing officer in August 1991. Neither document refers to the veteran's current employment status. The veteran had a VA rectum/anus examination in April 1996 when the examiner diagnosed status post excision of fistula in ano, status post rectal abscess, and status post excision of anal fissure "with moderate fecal incontinence." There is no mention of the veteran's current employability. The veteran had a VA psychiatric examination (with claims file review) in June 1997 when the examiner noted that the veteran's anxiety and depressive symptoms seemed to cause impairment of his occupational and other levels of functioning. The examiner stated that the veteran appeared to be "functioning at a level of 40-60 percent at the present time." The veteran was scheduled for VA examinations of the spine and the rectum/anus in June 1997, but he failed to report for those examinations; there accordingly is no documentation of the current degrees to which the service-connected fistula disorder and the nonservice-connected spine disorder(s) contributed to unemployability. However, the veteran did report for a VA rectum/anus examination in November 1997 and reported that he was not working because his nerves were "all shot" and because his rectum caused problems. The examiner diagnosed irritable bowel syndrome with alternating constipation and diarrhea, weakened anal sphincter following fistulotomy, and resultant occasional incontinence when the loose stools from the irritable colon and the weakened fistula came together. The examiner made no observation regarding employability. The veteran refused to undergo a VA psychiatric examination scheduled in March 2000. The veteran had another VA rectum/anus examination in December 2000. The examiner stated that the veteran could do any work that a man of his age and education could do, despite the anal problem. The examiner stated an opinion that if the veteran had only the rectum to deal with, he would be able to work; it was the other complaints (unspecified) that prevented the veteran from working. The claims file was reviewed in January 2004 by Dr. CNB, a neuro-radiologist. Dr. CNB stated a medical conclusion that the veteran had been totally unemployable since 1987 due to his "complete loss of rectal control." As rationale, Dr. CNB stated that the veteran had stopped working shortly after the failed corrective attempt [in 1983] and made only $522.00 in 1987 per SSA summary. The veteran underwent a VA rectum/anus examination by a nurse practitioner (NP) in February 2005. The nurse-examiner reviewed the claims file and noted the veteran's documented history and subjective history in detail. The veteran stated that he was unable to work, citing his service-connected sphincter problem but also citing workplace injuries to the knee, the right finger, and the back of the head. The examiner performed a clinical examination and recorded her observations in detail. The examiner stated that there was no indication that the veteran's fecal incontinence caused any problem in his last job at General Dynamics/Electric Boat, which was a fairly sedentary position. The examiner therefore stated that the veteran's subjective complaints did not seem to fit the objective findings, and that the veteran was employable. The veteran underwent a VA psychiatric examination in April 2005. The examiner reviewed the claims file and noted that the veteran had not worked for at least eight years due to multiple physical disabilities. The veteran reported having been paid $50,000.00 in back pay for work-related injuries in 1999, and also having been paid $40,000.00 in a more recent settlement. The examiner gave no opinion at the time regarding employability. In a September 2005 addendum, the VA psychiatric examiner stated that the veteran's depression and anxiety symptoms were most severe in 1997, when the veteran was admitted for inpatient VA psychiatric treatment. However, the depression and anxiety symptoms appeared to be moderate in themselves and would not cause unemployability in most individuals. Both the veteran's physical impairments and his psychiatric impairment appeared severe enough to separately cause him to be unemployable, although part of the psychiatric impairment appeared to be related to cognitive problems that could not be clearly connected to military service or to other service- connected conditions. The examiner stated that, if pressed to judge the severity of the [service-connected] depression and anxiety separately from [nonservice-connected] cognitive impairment and personality, the level of depression and anxiety reported by the veteran would be moderate and would not, by themselves, cause unemployability. The veteran's wife and the veteran's acquaintance SLV provided statements in May 2005 describing the veteran's psychiatric symptoms. Neither statement alludes to the veteran's history of employability. In March 2006, Dr. CNB testified before the Board that he continued to believe that the veteran was unemployable from 1987 due to the service-connected sphincter disorder, because the veteran had failed to return to work after failed rectal surgery. In April 2006, Dr. CNB submitted an addendum opinion stating that he had interviewed the veteran telephonically and reiterated his opinion as expressed during his testimony. Based on careful review of the evidence, the Board finds no competent medical or lay evidence showing that the veteran's service-connected medical disability (anal fistula) and/or psychiatric disability (dysthymic reaction/generalized anxiety disorder as secondary to the anal fistula) alone, when taken in conjunction with his education and occupational experience, were sufficient to have precluded him from obtaining or maintaining substantially gainful employment prior to January 24, 2004. Contemporaneous medical records from General Dynamics/Electric Boat show clearly that the veteran ceased working in 1986 not due to his anal fistula or any mental disorder, but rather due to the residuals of a workplace accident. In his subsequent direct contacts with VA, including his interviews with VA medical examiners and providers, the veteran had never demonstrated how the service-connected disabilities render him unemployable. The Board has carefully reviewed the January 2004 and April 2006 opinions by Dr. CNB, both of which assert that the veteran was rendered unemployable from 1987 by his service- connected sphincter impairment. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the Board finds Dr. CNB's opinion to be not probative because his medical conclusion is clearly based on an erroneous factual premise. Although Dr. CNB asserts as his rationale that the veteran ceased work "shortly after failed corrective surgery," the veteran demonstrably returned to work after his surgery in 1983 and ceased working in December 1986 - three years after the surgery - because of a workplace head-and-neck injury. In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Also, the Board has "the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1447, 1481 (Fed. Cir. 1997). The Board has accordingly determined that the opinions submitted by Dr. CNB are inconsistent with the factual evidence of record and fail to show that the veteran's service-connected disabilities resulted in unemployability prior to January 2004. The Board also notes that Dr. CNB's opinion is inconsistent with contemporaneous medical examinations conducted in April 1996 (noting "moderate fecal incontinence") and December 2000 (stating that the veteran could do any work that a man of his age and education could do, despite the anal problem). It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that the VA examiners in April 1996 and December 2000 based their assessments of the veteran's current employability on actual clinical examination, whereas Dr. CNB based his assessment on review of the file and telephone interview of the veteran. The Board finds that the VA examination reports are more probative of the veteran's contemporaneous symptoms. Accordingly, the claims for earlier effective date for TDIU and DEA must be denied. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2003). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case the preponderance of the evidence is against the claim, and the benefit-of-the-doubt rule does not apply. Gilbert; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The veteran's attorney asserts that the issues of earlier effective dates for TDIU and DEA are "inextricably intertwined" with the issue of increased rating for the service-connected anal fistula, in which case the Board would have to defer adjudication of the effective date issues pending resolution of the increased rating claim (remanded below). However, the Board finds that the issues are not inextricably intertwined for the following reasons. Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). If a veteran already has a 100 percent schedular disability, TDIU is not available. Green v. West, 11 Vet. App. 472 (1998); Vettese v. Brown, 7 Vet App. 31, 34-35 (1994); Holland v. Brown, 6 Vet. App. 443 (1994). Therefore, if a higher (100 percent) rating for the service-connected anal fistula is granted effective prior to January 29, 2004, the claims for earlier effective date for TDIU and DEA would indeed become moot effective the date of the grant. However, such a grant is speculative at this point. There is no reason at this point why the issues of earlier effective date for TDIU rating and DEA on one hand, and evaluation of the service-connected anal fistula on the other, may not be considered independently of each other. ORDER An effective date prior to January 29, 2004 for a TDIU rating is denied. An effective date prior to January 29, 2004 for DEA benefits is denied. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action on the claims for service connection for PTSD and increased evaluation for anal fistula is warranted, even though such action will, regrettably, further delay an appellate decision on the claim. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. Because the RO did not fully comply with the directives of the Board's prior remand in this appeal, another remand is required. The Board's remand in November 2006 directed the RO to arrange a psychiatric examination for the veteran at an appropriate VA medical facility in order to clarify whether the veteran had a competent diagnosis of PTSD, as the evidence of record (including VA medical treatment records) was inconsistent regarding diagnosis. Review of the claims file does not show that the veteran has been afforded the psychiatric examination required by the Board. The Board's remand also directed the RO to schedule the veteran for an examination by VA by a specialist in proctology, due to the complex nature of the service- connected anal fistula disability. The veteran was examined in April 2007 by a VA nurse practitioner (NP). The Board cannot accept a report by an NP as compliant with the Board's request for an examination by a "specialist in proctology." The claims are accordingly remanded once again to enable the RO to schedule the veteran for VA medical examinations in compliance with the terms of the Board's remand in November 2006. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Specifically, the RO should advise the veteran of the elements required to establish entitlement to increased ratings per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Hart v. Mansfield, 21 Vet. App.505 (2007), and Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), and should also advise the veteran to send VA all evidence in his possession not already of record that is relevant to his claim. In addition, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is REMANDED to the RO for the following actions: 1. The RO should sent to the veteran a letter advising him of the elements required by Dingess/Hartmann as cited above for claims of service connection and increased rating, and as required by Hart and Vazquez-Flores as cited above regarding claims for increased rating. The letter should advise the veteran of the respective duties of VA and the claimant in procuring evidence, and should invite the veteran to provide VA with any evidence in his possession relevant to his claim that is not already of record. 2. The RO should schedule the veteran for psychiatric examination at an appropriate VA medical facility in order to determine whether the veteran has PTSD in addition to his service-connected dysthymic reaction and generalized anxiety disorder (currently rated as 50 percent disabling). The entire claims file must be made available to the examiner, and the examiner should indicate in the report that the entire file was reviewed. The examination report should include discussion of the veteran's documented psychiatric history, as shown in STR and post-service medical records, as well as the veteran's subjective assertions regarding his symptomology. The examiner should diagnose any psychiatric disorder(s) found to be currently present. If the veteran is found to have a diagnosis of PTSD, the examiner should state an opinion as to whether it is at least as likely as not that such PTSD is due to any specific stressor(s) related to military service as cited by the veteran. 3. The RO should also schedule the veteran for VA examination by a physician specializing in proctology at an appropriate VA medical facility in order to determine the severity of the veteran's service-connected anal fistula. The entire claims file must be made available to the examiner, and the examiner should indicate in the report that the entire file was reviewed. The examination report should include discussion of the veteran's documented medical history, as well as the veteran's subjective assertions regarding his symptomology. The examiner should also review the April 2006 opinion submitted by Dr. CNB. The examiner should provide a report showing the current severity of the veteran's service-connected anal fistula. All appropriate diagnostics should be performed, and clinical findings should be reported in detail. The veteran's symptoms should be described in terms conforming to the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). The examiner should indicate whether the veteran's symptoms clinically more closely approximate "complete loss of sphincter control" versus "extensive leakage and fairly frequent involuntary bowel movements." See 38 C.F.R. § 4.114, Diagnostic Code 7332. 4. To help avoid future remand, the RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the required actions, and any additional notification and/or development deemed warranted, RO should adjudicate the veteran's claims for service connection for PTSD and increased evaluation for anal fistula in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted, the RO should furnish to the veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and should afford him a reasonable opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to afford due process; it is not the Board's intention to imply whether the benefits should be granted or denied. The veteran need take no action unless 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 by the RO. The law requires that all claims that are remanded by the Board or 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 2002 & Supp. 2007). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs