Citation Nr: 1237230 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-41 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial rating in excess of 10 percent for dysthymia. REPRESENTATION Appellant represented by: Darla J. Lilley, Attorney ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to October 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO), which granted service connection for dysthymia and assigned an initial rating of 10 percent as of January 11, 2005. In a May 2009 decision, the Board affirmed the RO's denial of the benefit on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2010, the Court vacated that Board decision with respect to the issues of (1) entitlement to an effective date earlier than January 11, 2005 for the award of service connection for dysthymia, and (2) entitlement to an initial rating in excess of 10 percent for dysthymia; and remanded the case to the Board for readjudication in compliance with a June 2010 Joint Motion. In a second decision promulgated in November 2010, the Board, in pertinent part, again denied the Veteran's increased rating claim. Pursuant to a Memorandum Decision, the Court, in a June 2012 Order, vacated that portion of the decision that denied an increased rating for dysthymia. The appeal of this issue was remanded to the Board. The Court affirmed the Board's November 2010 grant of an effective date of June 8, 2001 for the award of service connection for dysthymia, which is, therefore, no longer in appellate status. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that his service-connected dysthymia is more disabling than is reflected in the current 10 percent evaluation. Although he underwent an examination for VA purposes in August 2009, in the above-cited Memorandum Decision, the Court has challenged the adequacy of that VA examination on the basis that the examining physician did not provide rationale or explanation for the opinion and instead proffered only conclusory statements regarding the impact on occupational and daily activities instead of providing actual analytical support. Moreover, since the August 2009 VA examination, there is no evidence in the claims file which adequately describes the current nature and extent of the Veteran's service-connected dysthymia. Therefore, to ensure that the record reflects the current severity of this condition, a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to evaluate properly the service-connected disability under consideration. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of duty to assist requires contemporaneous medical examination, particularly if there is no additional medical evidence which adequately addresses level of impairment since previous examination); See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of present dysthymia symptoms, as well as any significant pertinent interval medical history since his last VA examination in 2009. Also on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In this regard, the Board notes that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in January 2008. Finally, the Veteran is appealing the original assignment of the disability rating for his service-connected dysthymia following the award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Thus, the disability evaluation must be considered from June 2001 to the present. Accordingly, the case is REMANDED for the following action: 1. After procuring the appropriate release of information forms where necessary, obtain records of any recent treatment for, or evaluation of, the service-connected dysthymia that the Veteran has undergone. The Board is particularly interested in any pertinent treatment that the Veteran may have received since January 2008. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. The Veteran should be scheduled for VA examination of his service-connected dysthymia. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies should be accomplished, and all signs and symptoms of dysthymia should be reported in detail. The examiner must describe the impact of the Veteran's dysthymia on his occupational and social functioning and must provide analytical support for any conclusions reached in this regard. See June 2012 Memorandum Decision of the United States Court of Appeals for Veterans Claims. Also, the psychiatric symptoms discussed below are not exclusive or exhaustive; they are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Specifically, the examiner must state whether the Veteran's service-connected dysthymia more nearly approximates a disability characterized by: a) 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; or b) Occupational and social impairment with an 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); or c) 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; or difficulty in establishing and maintaining effective work and social relationships; or d) Occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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 work-like setting); or an inability to establish and maintain effective relationships; or e) 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; or memory loss for names of one's close relatives, occupation, or own name. The examiner is requested to use a multiaxial assessment, assign a Global Assessment of Functioning (GAF) score, explain what the assigned score represents in terms of the Veteran's psychological, social, and occupational functioning, and reconcile that score with earlier GAF scores. Any disabling manifestations specifically attributable to dysthymia must be fully outlined and differentiated from symptoms caused by any nonservice-connected disorders. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examination conducted in August 2009. 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to an initial rating greater than 10 percent for the service-connected dysthymia. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the most recent supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 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. 2011). _________________________________________________ S. L. Kennedy 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) (2011).