Citation Nr: 1301782 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 04-07 061A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating greater than 10 percent prior to November 5, 2004, and greater than 30 percent thereafter for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include adjustment disorder with depressed mood. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from October 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which granted the Veteran's claim of service connection for an acquired psychiatric disability other than PTSD, to include adjustment disorder with depressed mood (which was characterized as adjustment disorder with mixed anxious and depressive mood (previously denied psychological trauma with mental and emotional distress)), assigning a 10 percent rating effective March 13, 2002. RO hearings were held on this claim in February 2003 and in July 2004. Having reviewed the voluminous evidence of record, the Board finds that the Veteran's service-connected disability is characterized more appropriately as stated on the title page of this decision. In a March 2005 rating decision, the RO assigned a higher initial 30 percent rating effective November 5, 2004, for the Veteran's service-connected acquired psychiatric disability other than PTSD, to include adjustment disorder with depression mood ("psychiatric disability"). Because the initial ratings assigned to this disability are not the maximum ratings available, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2006, October 2007, October 2008, and in May 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issues of entitlement to an earlier effective date than April 2, 2001, for a 10 percent rating for status-post trauma mid-chip fracture of the lateral condyle humerus of the left arm (limitation of flexion) and for a 10 percent rating for status-post trauma mid-chip fracture of the lateral condyle humerus of the left arm (limitation of supination and pronation) ("earlier effective date claims"), entitlement to a total disability rating based on individual unemployability (TDIU), and entitlement to service connection for a pain disorder, to include as due to a service-connected disability, have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran filed his earlier effective date claims in February 2002 correspondence submitted to the RO. The Board previously referred back a service connection claim for a pain disorder, to include as due to a service-connected disability, in its May 2010 remand; it appears that the Veteran filed this claim at the RO in October 2006. He also filed a TDIU claim in May 2011 correspondence. To date, the RO has not taken action on any of these claims. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. Unfortunately, as is explained below in greater detail, the appeal is REMANDED again to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claim for an initial rating greater than 10 percent prior to November 5, 2004, and greater than 30 percent thereafter for an acquired psychiatric disability other than PTSD, to include adjustment disorder with depressed mood, can be adjudicated. The Board notes that, in its most recent remand in May 2010, it requested that the RO contact the Veteran and ask him whether he was in receipt of Social Security Administration (SSA) disability benefits and, if so, to attempt to obtain the Veteran's complete SSA records. The RO sent the Veteran a letter in June 2010 asking him whether he was in receipt of SSA disability benefits. The Veteran responded in a statement on a VA Form 21-4138 dated on July 15, 2010, and date-stamped as received by the RO on August 9, 2010, that he had not applied for SSA benefits. Thus, the Board finds that the RO complied with the May 2010 remand directive concerning the potential existence of relevant SSA records. See Stegall, 11 Vet. App. at 268. The Veteran's wife subsequently informed his service representative in July 2011 correspondence that he had applied for and been approved for SSA disability benefits "due to his mental conditions." This letter was dated on July 25, 2011, and date-stamped as received by the AMC on August 8, 2011, after this appeal had been certified for appellate review to the Board. The Board notes in this regard that the duty to assist includes requesting potentially relevant records which may be in possession of SSA. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Although the Board regrets having to remand this claim again, nevertheless, the Board finds that, on remand, the RO should contact SSA and request any records that may be in SSA's possession regarding the Veteran's SSA disability benefits claim. A copy of any response(s) from SSA, to include a negative reply, should be associated with the Veteran's claims file. The Board also notes that, in her July 2011 letter, the Veteran's wife asserted that the Veteran was taking disability retirement from Federal service "due to his mental conditions." She enclosed a copy of a form indicating that the Veteran had requested immediate retirement from Federal service due to disability. Thus, on remand, the RO should contact the Veteran and ask him to provide information regarding his disability retirement so an attempt can be made to obtain these records. The Veteran also essentially contends that his service-connected psychiatric disability has worsened since his most recent VA examination. It appears from a review of the Veteran's voluminous claims file that his most recent VA psychiatric examination occurred in October 2009. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, the length of time which has elapsed since his most recent VA examination in October 2009, and because this claim is being remanded for additional development, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected psychiatric disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. It appears that the most recent VA outpatient treatment records associated with the claims file are dated only through June 2010. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names of all private providers from whom he has received treatment for his service-connected psychiatric disorder since June 2010. Obtain any treatment records identified by the Veteran. If private records are identified by the Veteran and attempts to retrieve them yield a negative response should be documented in the claims file and the Veteran notified accordingly. 2. Obtain any outstanding VA treatment records from July 2010 to the present and associate the records with the claims file. 3. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for his service-connected acquired psychiatric disability other than PTSD, to include adjustment disorder with depressed mood, since his service separation. Ask them to provide information concerning the Veteran's disability retirement from Federal service (i.e., his employing agency prior to retirement, his date of retirement, his reasons for retirement). Notify them that, if information regarding the Veteran's disability retirement is not provided, then VA may not be able to obtain relevant evidence which may support his claim. Advise the Veteran not to resubmit any records already provided to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 4. Contact the Social Security Administration (SSA) and request the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records which are in SSA's possession. A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. 5. If, and only if, the Veteran confirms that he took disability retirement from Federal service and provides his employing agency prior to his retirement, his date of retirement, and the reasons for his retirement, then contact the appropriate Federal records repository and attempt to obtain the Veteran's complete employment records, to include any administrative decision(s) on his application for disability retirement from Federal service and all underlying medical records which supported the decision to approve his disability retirement request. A copy of any request(s) sent to the appropriate Federal records repository, and any reply, to include any records obtained, must be included in the claims file. 6. Schedule the Veteran for appropriate in-person examination to determine the current nature and severity of his service-connected acquired psychiatric disability other than PTSD, to include adjustment disorder with depressed mood. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should identify any acquired psychiatric disability other than PTSD currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to determine whether the Veteran's service-connected acquired psychiatric disability other than PTSD, to include adjustment disorder with depressed mood, is manifested by 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, and difficulty in establishing and maintaining effective work and social relationships. The examiner also is asked to determine whether the Veteran's service-connected acquired psychiatric disability other than PTSD, to include adjustment disorder with depressed mood, is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech 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. The examiner finally is asked to determine whether the Veteran's service-connected acquired psychiatric disability other than PTSD, to include adjustment disorder with depressed mood, is manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. A complete rationale must be provided for any opinions expressed. 7. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 8. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).