Citation Nr: 1007807 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 05-15 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an effective date prior to October 20, 2004 for service connection for a major depressive disorder. 2. Entitlement to a rating in excess of 10 percent for service-connected major depressive disorder. 3. Entitlement to service connection for schizophrenia. 4. Entitlement to service connection for a sinus disorder. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran had active military service from March 1994 to February 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal of December 2002, February 2004, August 2005 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran's earlier effective date, increased rating, and sinus disorder service connection claims are addressed in the REMAND portion of the decision below and are therefore REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDINGS OF FACT 1. The service connection claim for schizophrenia stems from the RO's interpretation of his October 2004 claim for a psychiatric disability as two claims, a claim to reopen a previously denied psychiatric disability claim (later referred to as a depressive disorder) and an initial claim for service connection for schizophrenia. 2. In the Board's February 2008 decision, the Board essentially consolidated these issues and remanded the matter for a medical opinion to determine whether the Veteran had any psychiatric disability that was attributable to service or his service-connected disabilities. 3. In a September 2009 VA medical examination report, the VA examiner found the Veteran's psychiatric disorder, major depression, to be linked to the Veteran's service-connected disabilities. 4. Service connection for the Veteran's psychiatric disability was established in a November 2009 rating action, removing any case or controversy regarding any such claim. CONCLUSION OF LAW There are no remaining allegations of error of fact or law for appellate consideration with respect to a claim of entitlement to service connection for a psychiatric disorder and the Veteran's appeal is therefore dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION By way of history, the RO construed the Veteran's October 2004 service connection claim for a psychiatric disability as two claims, a claim to reopen a previously denied "nervous disorder" claim, thereafter referred to as a depressive disorder, and an initial service connection claim for schizophrenia, apparently based on evidence of record reflecting multiple psychiatric diagnoses. In the Board's February 2008 decision, the Board essentially consolidated these issues and remanded the matter for a medical opinion to determine whether the Veteran had any psychiatric disability that was attributable to service or his service-connected disabilities. In a September 2009 VA medical examination report, the VA examiner found the Veteran's psychiatric disorder, major depression, to be linked to the Veteran's service-connected disabilities. Service connection for the Veteran's psychiatric disability was established in a November 2009 rating action, thereby removing any case or controversy regarding any such claim. Accordingly, there is no remaining allegation of error of fact or law with respect to this claim. Therefore, dismissal of the Veteran's appeal for service connection schizophrenia, is the appropriate action. See 38 U.S.C.A. § 7105(d). ORDER The appeal of the claim for service connection for schizophrenia, is dismissed. REMAND Earlier Effective Date and Increased Rating Claims In order to appeal an RO rating decision to the Board, certain procedural steps must be followed to grant the Board jurisdiction to review the case. Once a rating decision is issued, the Veteran or his or her representative must file a timely notice of disagreement (NOD). So long as the issues being appealed are clear, the agency of original jurisdiction (AOJ) by law must then issue a statement of the case (SOC). Finally, to convey jurisdiction to hear the case at the Board, the Veteran must file a timely, substantive appeal. 38 C.F.R. §§ 19.26, 20.200, 20.201, 20.302(a). The Veteran's claim of entitlement to service connection for psychiatric disability was granted by a November 2009 rating decision, and a 10 percent disability rating was assigned. In a statement submitted in December 2009, the Veteran indicated he would like to appeal the assignment of the effective date for that grant of service connection as well as his initial assignment of a 10 percent disability rating. No special wording is required for a NOD, and the Veteran's December 2009 statement clearly conveyed his wish to appeal the effective date and initial rating assigned in his November 2009 rating decision. As such, the Veteran's December 2009 statement serves as a NOD for the downstream issues of assignment of an effective date and an initial rating. See 38 C.F.R. §§ 20.201, 20.302(a). However, the Veteran has not been provided with an SOC on these issues, and this should be accomplished. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). The Veteran is advised that if he wishes to perfect his appeal to the Board, he must file a timely substantive appeal after receiving his SOC. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Service connection for a Sinus Disorder The Veteran is seeking service connection for a chronic sinus condition that he contends he developed in service. The Veteran's service treatment records reflect a March 1994 diagnosis of sinusitis, and the Veteran affirmed having sinusitis in a post-service 1997 report of medical history. VA treatment records reflect that he has carried a diagnosis of chronic sinusitis on his computerized VA problem list since 2004, when a December 2004 CT scan of the Veteran's paranasal sinuses was interpreted to reveal sinusitis. The Veteran's subsequent VA treatment records reflect treatment for allergic rhinitis. The Veteran underwent a VA otolaryngological examination in October 2009, at which time the examiner reviewed the Veteran's claims file and cited three VA otolaryngological treatment records from 2002 reflecting the Veteran's treatment for allergic rhinitis, not sinusitis. After examining the Veteran and reviewing x-rays of his sinuses, the examiner diagnosed the Veteran with allergic rhinitis and noted that there was no evidence of any sinus pathology at the time of the examination. The examiner further found that given the absence of any sinus pathology, a medical opinion regarding the relationship between any diagnosed sinus disorder and service was not warranted. The Board first notes that the 2002 VA otolaryngological treatment records referenced by the examiner in his report are not of record and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2009). Furthermore, the examination report does not reflect the examiner's review of the Veteran's 2004 paranasal sinus CT scan, as the examiner notes that a review of the Veteran's claims file was noncontributory for sinusitis, citing only the aforementioned 2002 allergic rhinitis treatment. As this CT scan represents radiological evidence of a diagnosed sinus disorder during the pendency of this claim, it is evidence that should be considered by the examiner when determining the nature of any current sinus disorder. Finally, the Board also finds that after a complete review of the Veteran's claims file, the medical examiner should discuss whether any presently diagnosed sinus disorder, including allergic rhinitis, had its onset in or is otherwise attributable to service. TDIU Adjudication of the Veteran's TDIU claim is deferred pending the outcome of the Veteran's remanded claims. Accordingly, the case is REMANDED for the following actions: 1. The RO should issue a statement of the case with respect to the issues of (1) entitlement to an effective date for service connection for a major depressive disorder prior to October 20, 2004 and (2) a rating in excess of 10 percent for service-connected major depressive disorder. The Veteran should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If a timely substantive appeal is filed, the case should be returned to the Board for further appellate consideration, if appropriate. 2. Obtain copies of the Veteran's VA medical treatment records from 2002 (specifically including the March, April, and July 2002 otolaryngological treatment records referenced in the Veteran's October 2009 VA otolaryngological examination report), and from October 2009 to the present. 3. Next, the Veteran's claims file should be returned to the physician who performed the Veteran's October 2009 VA otolaryngological examination, if possible. If this examiner is unavailable, the claims file should be reviewed by an appropriate VA medical professional. The examiner is asked to review all of the relevant medical evidence of record, including the Veteran's December 2004 VA paranasal CT scan which a December 2004 VA treatment record reflects was interpreted to reveal sinusitis, and reconcile this radiological evidence with an earlier finding that there was no evidence of sinus pathology of record. The examiner should then opine whether any currently- diagnosed sinus disorder, including both chronic sinusitis or allergic rhinitis, had its onset in or is otherwise related to service. A complete rationale should be provided for all opinions expressed. If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be included. 4. Thereafter, the evidence should be reviewed, and the Veteran's claims, including entitlement to a TDIU, should be re-adjudicated. If the Veteran's claims remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2009). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs