Citation Nr: 1300396 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 12-05 559 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than service-connected posttraumatic stress disorder (PTSD), to include anxiety disorder and major depressive disorder. 2. Entitlement to an initial rating greater than 50 percent for service-connected PTSD, to include a total disability rating based upon individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to March 1946, to include service in the Pacific Theater during World War II. The Veteran's decorations include the Asiatic Pacific Service Medal. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2011 rating decision in which the RO denied service connection for PTSD. In January 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2012. Consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that service connection for PTSD includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record, the issue on appeal was expanded in the SOC to include entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2012. In April 2012, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In his substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge in Washington, DC. In correspondence received in June 2012, the Veteran cancelled his hearing request. In July 2012, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board notes that a July 2011 VA Form 21-22 is of record, which grants a power-of-attorney in favor of The American Legion with regard to the claims on appeal. Subsequently, the Veteran executed a new VA Form 21-22a in March 2012 which purports to grant power-of-attorney in favor of Mr. R.L.S. Nonetheless, claims development records in the claims file show that Mr. R.L.S. is not presently accredited to represent claimants in claims before VA, and also, does not qualify for representation of the Veteran on a one-time, one-claim basis under 38 C.F.R. § 14.630. Notice to that effect was mailed to Mr. R.L.S. and the Veteran in May 2012. Subsequently, additional arguments made on the Veteran's behalf and the Veteran's motion to advance this appeal on the docket was received from The American Legion in June 2012. In July 2012, the Board re-characterized the appeal as encompassing claims of entitlement to service connection for PTSD, and entitlement to service connection for an acquired psychiatric disorder other than service-connected PTSD, to include anxiety disorder and major depressive disorder. At that time, the Board recognized The American Legion as the Veteran's appointed representative. The Board granted the claim of entitlement to service connection for PTSD, and remanded the service connection claim for an acquired psychiatric disorder other than PTSD to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further development. A July 2012 RO rating decision assigned an initial 50 percent rating for PTSD effective January 18, 2011. In November 2012, the Veteran submitted a written statement disagreeing with the RO's determination not to assign a total disability rating based upon individual unemployability (TDIU). As explained in more detail in the REMAND below, the Veteran has submitted a timely NOD with respect to the initial rating assigned for service-connected PTSD, to include entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (request for TDIU is not a separate "claim" for benefits, but rather part and parcel of the determination of the initial rating for a disability). This issue has been listed on the title page for procedural purposes only. The Board further notes that, in October 2012, the Veteran submitted a written statement revoking his power of attorney on behalf of a Veterans Service Organization, to include The American Legion. On these facts, and at this juncture, the Board recognizes the Veteran as now proceeding unrepresented, or, pro se, in this appeal. See 38 C.F.R. § 20.607 (2012). After completing additional development, the AMC denied service connection for an acquired psychiatric disorder other than service-connected PTSD, to include anxiety disorder and major depressive disorder (as reflected in a November 2012 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. A review of the Virtual VA electronic records storage system reveals that the RO attached additional VA clinic records in September 2012 which are not associated with the paper claims file.. This evidence was considered by the RO in the November 2012 SSOC. There are no additional records within Virtual VA which are not currently associated with the paper claims file. The Board's disposition of the claim for service connection for an acquired psychiatric disorder other than service-connected PTSD, to include anxiety disorder and major depressive disorder, is set forth below. The claim for an initial rating greater than 50 percent for service-connected PTSD, to include a TDIU-for which the Veteran has completed the first of two actions required to place this matter is appellate status-is addressed in the REMAND following the ORDER; this matter is being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the matter herein decided has been accomplished. 2. Service connection for all currently manifested psychiatric symptoms, however diagnosed, has already been established in the award of service connection for PTSD, and there is no remaining "controversy" or "justiciable" claim as regards the matter of service connection for an acquired psychiatric disorder other than PTSD currently before the Board. CONCLUSION OF LAW The matter of entitlement to service connection for an acquired psychiatric disorder other than service-connected PTSD, to include anxiety disorder and major depressive disorder, is dismissed due to the absence of a controversy at issue. 38 U.S.C.A. § 7105(d) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due process considerations 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. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). As more fully explained below, the issue certified for appeal by the RO has already been fully resolved in the Veteran's favor. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, 159 F. 3d. 534, 549 (Fed. Cir. 1998). II. Service connection for an acquired psychiatric disorder other than service-connected PTSD Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime service. 38 U.S.C.A. § 1110 (West 2002); . In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection will also be presumed for certain chronic diseases, such as a psychosis, if manifest to a compensable degree within a prescribed period after discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). As noted, service connection has been awarded for PTSD, which is evaluated as 50 percent disabling under the criteria of Diagnostic Code 9411. See 38 C.F.R. § 4.130. This rating contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Veteran seeks VA compensation for his currently manifested psychiatric symptoms. As such, the controversy at issue involves whether the Veteran's other diagnosed psychiatric disorders, to include anxiety disorder and major depressive disorder, are of nonservice-connected origin to warrant differentiating symptoms of service-connected versus nonservice-connected psychiatric symptoms for compensation rating purposes. Notably, as all psychiatric disabilities other than eating disorders are evaluated under a General Rating Formula, the criteria for evaluating anxiety disorder (Diagnostic Code 9413) and major depressive disorder (Diagnostic Code 9434) are the same as that for PTSD under Diagnostic Code 9411. See 38 C.F.R. § 4.130 (2012). Historically, the record first reflects diagnoses of anxiety reaction and depressive psychosis in 1965. The Veteran had alleged the onset of psychiatric symptoms in service which included emotional disturbance with instances of shortness of breath and smothering sensation. In January 2011, the Veteran filed a formal service connection claim for psychiatric disability which he characterized as PTSD. His spouse described the Veteran as having a long-standing history of psychiatric symptoms which included nightmares, crying spells, and emotional outbursts. The available private and VA treatment records reflected various diagnoses such as anxiety disorder not otherwise specified (NOS), major depressive disorder, depression, adjustment disorder and PTSD. VA Compensation and Pension (C&P) examinations in September 2011 and January 2012 concluded that the Veteran did not meet the criteria for a PTSD diagnosis due to lack of a sufficient stressor and lack of persistent re-experiencing of a traumatic event. See 38 C.F.R. § 4.125 (a PTSD diagnosis must conform to the diagnostic criteria under the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The September 2011 VA C&P examiner concluded that the Veteran's psychiatric symptoms were more properly diagnosed as an anxiety disorder, NOS. However, a March 2012 VA C&P examiner concluded that the Veteran did meet the DSM-IV criteria for a PTSD diagnosis. The Board's July 2012 decision resolved reasonable doubt in favor of the Veteran by finding that he manifested PTSD as a result of verified in-service stressors. Given the diagnostic differences among various examiners, the Board remanded the matter of the Veteran's entitlement to service connection for an acquired psychiatric disorder other than PTSD for medical opinion as to whether the Veteran has any additional psychiatric diagnoses of service origin. In August 2012, a VA C&P examiner provided the following opinion in this matter: It is my clinical opinion that this patient's current symptoms are all explainable under the diagnostic label of PTSD. While his past records show alternative diagnoses made over the years, it is not uncommon to see such diagnostic uncertainty in the presence of PTSD. In particular the question of major depressive disorder has been raised. Depression, sometimes of a severe nature, is frequently seen as part of the patient presentation in PTSD. Some PTSD sufferers even attempt suicide due to the severity of their depressive symptoms. I therefore find no compelling evidence to classify the patient's depressive symptomatology as a separate psychiatric disorder. Another issue raised has been the question of anxiety disorder. PTSD is itself classified as an anxiety disorder in the DSM-4. Thus, by definition, a patient with PTSD has an anxiety disorder. Again, I see no compelling evidence to warrant a separate anxiety diagnosis, different and distanced from the PTSD diagnosis. As a result of the August 2012 C&P opinion, the RO has continued to formally deny a service connection claim for an acquired psychiatric disorder other than PTSD, to include anxiety disorder and major depressive disorder. Notably, in its July 2012 assignment of an initial 50 percent rating for PTSD, the RO attributed all psychiatric symptoms to his service-connected PTSD. In response, the Veteran has not disputed the RO's determination that service connection is not warranted for any separate psychiatric diagnosis/es other than PTSD. See Written Statement received November 2012. Rather, the Veteran has argued that he is entitled to a higher initial rating for his service-connected PTSD (which is addressed in the REMAND following this decision). In this case, the August 2012 VA examiner opined that all of the Veteran's currently manifested psychiatric symptoms are attributable to a single diagnosis of PTSD. Thus, service connection for all currently manifested psychiatric symptoms, however diagnosed, has already been established in the award of service connection for PTSD. As such, the Board finds that there is no "controversy" or "justiciable" claim as regards the matter of the Veteran's entitlement to service connection for an acquired psychiatric disorder other than PTSD currently before the Board. As the matter of service connection for psychiatric disability (characterized as PTSD) has already been resolved in the Veteran's favor, on these facts, the matter of the Veteran's entitlement to service connection for an acquired psychiatric disorder other than PTSD must dismissed. See 38 U.S.C.A. § 7105(d) (West 2002). See also Schoen v. Brown, 6 Vet. App. 456, 457 (1994); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim of entitlement to service connection for an acquired psychiatric disorder other than service-connected PTSD, to include anxiety disorder and major depressive disorder, is dismissed without prejudice. REMAND The claims file reflects that a July 2012 RO rating decision assigned an initial 50 percent rating for PTSD effective January 18, 2011. In November 2012, the Veteran submitted correspondence to the RO disagreeing with the RO's determination not to assign a TDIU rating. The Board construes this statement as requesting a higher rating for PTSD, to include a TDIU. See Rice, 22 Vet. App. 447 (2009) (a request for TDIU is not a separate "claim" for benefits, but rather part and parcel of the determination of the initial rating for a disability). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). However, the RO has not yet issued an SOC with respect to this claim, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. at 240-41; Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Accordingly, this matter is hereby REMANDED to RO, via the AMC, for the following action: The RO must furnish to the Veteran (and his representative, if any) an SOC with respect to the July 2012 RO rating decision on the issue of entitlement to an initial rating greater than 50 percent for service-connected PTSD, to include a TDIU, along with a VA Form 9, and afford him or them the appropriate opportunity to submit a substantive appeal perfecting an appeal on that issue. The Veteran and his representative, if any, are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-as regards the matter of entitlement to an initial rating greater than 50 percent for service-connected PTSD, to include a TDIU, within 60 days of the issuance of the SOC. 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. 2012). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs