Citation Nr: 1319140 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 01-07 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder (other than service-connected dysthymic disorder), to include posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating greater than 30 percent for gastroesophageal reflux disease (GERD) with a hiatal hernia. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from April 1971 to January 1973 and additional Reserve service. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO denied, in pertinent part, the Veteran's claim of service connection for PTSD. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. The Veteran testified in September 2002 before a Decision Review Officer (DRO) and a transcript thereof is on file. At that time he withdrew claims for service connection for disability of his knees and for residuals of exposure to asbestos. In October 2003 the Board remanded claims for service connection for (1) arthritis of both feet, (2) GERD with hiatal hernia, (3) dysthymic disorder, and (4) PTSD. This matter also is on appeal of an April 2005 rating decision in which the RO granted service connection for GERD with a hiatal hernia and assigned a 30 percent rating effective April 3, 2000. Because this initial rating is not the maximum rating allowable, this claim remains in appellate status. See A.B. v. Brown, 6 Vet. App. 35, (1993). In July 2005, the Board denied the Veteran's claims for service connection for (1) disability of the feet, claimed as arthritis, (2) dysthymic disorder, and (3) PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) which, in December 2006, pursuant to a Joint Motion for Remand (JMR) vacated the July 2005 Board decision and remanded the case to the Board. A January 2008 Board decision granted service connection for a dysthymic disorder and remanded the claims for service connection for PTSD and for disability of the feet, claimed as arthritis. A July 2008 rating decision denied a TDIU rating, from which the Veteran has perfected an appeal to the Board. In a March 2009 VA Form 9, Appeal to the Board, perfecting his appeal as to entitlement to a TDIU rating, the Veteran requested a hearing before the Board in Washington D.C. However, in January 2011 he withdrew that request. A February 2011 Board decision dismissed the claim for disability of the feet, claimed as arthritis, because the Veteran had withdrawn that claim. The issue of service connection for PTSD was recharacterized as service connection for an acquired psychiatric disorder, claimed as PTSD (pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). That issue and the claims for an initial rating in excess of 30 percent for GERD with hiatal hernia and a TDIU rating were remanded. In May 2012 the Board again remanded the claims for service connection for PTSD, an initial rating in excess of 30 percent for GERD with hiatal hernia, and for a TDIU rating. In March 2011 the Veteran filed a motion for reconsideration of the February 2011 Board remand, addressing specifically the claims for service connection for psychiatric disability and the rating for the service-connected GERD with hiatal hernia. In April 2011 the Deputy ViceChairman of the Board denied the motion because the February 2011 Board remand was not a final decision. The case has now been returned to the Board for appellate consideration. In a May 2012 statement (in which the Veteran withdrew his claim for service connection for an acquired psychiatric disorder (other than service-connected dysthymic disorder), to include PTSD. He also requested an increased rating for his service-connected dysthymic disorder. The latter matter has not been addressed by the RO and, so, the Board has no jurisdiction over this matter. Accordingly, this matter is referred to the RO for initial consideration. The Board observes that the issues addressed in the JMR underlying the Court's December 2006 remand are no longer before the Board. For the reasons explained in the REMAND portion of this decision, the claim for an initial evaluation in excess of 30 percent for GERD must be remanded for further development. Also, because any adjudication of the claim for an increased initial rating for GERD or the claim for a rating in excess of 50 percent for service-connected dysthymic disorder, or both, may impact upon the claim for a TDIU rating, the claim for a TDIU rating must be deferred pending adjudication of that increased rating claim and, thus, the claim for a TDIU rating is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT In a May 2012 statement, and prior to the promulgation of a decision, the Veteran requested withdrawal of the issue of service connection for an acquired psychiatric disorder (other than service-connected dysthymic disorder), to include PTSD. CONCLUSION OF LAW The criteria for withdrawal of the Veteran's Substantive Appeal on the issue of entitlement to service connection for an acquired psychiatric disorder (other than service-connected dysthymic disorder), to include PTSD have been met. 38 U.S.C.A. §§ 5013(a), 5103A, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), was intended to be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. However, any such timing error may be corrected by providing notice, followed by readjudication of the claim. As to the claim for service connection for GERD and hiatal hernia, the Veteran was provided with notice of the respective evidentiary gathering duties by RO letter in June 2004, prior to the grant of service connection for that disorder. The Veteran was provided with the required notice under Dingess, Id., by RO letter of February 2008, in compliance with the January 2001 Board remand. The Board observes that the issues addressed in the JMR underlying the Court's December 2006 remand are no longer before the Board. As to the claim for service connection for acquired psychiatric disorder (other than service-connected dysthymic disorder), to include PTSD because the Veteran has withdrawn that claim and by this decision that claim is dismissed, any failure to provide appropriate VCAA notice or assistance in developing the evidence for claim substantiation is nonprejudicial. Service Connection For An Acquired Psychiatric Disorder (Other Than Service-Connected Dysthymic Disorder), to Include PTSD Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b), (c) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c) (2012). Pursuant to the February 2011 Board remand the Veteran was afforded VA examinations in November 2011 which found that he only had a dysthymic disorder and had no residuals of traumatic brain injury. In the following December 2011 Supplemental Statement of the Case (SSOC) the Veteran was informed, at page 8, that he was already service-connected for a mental disability, Dysthymic Disorder. Since he was already service-connected for a mental condition, no additional compensation would be payable for another [service-connected] mental condition. It was noted that certain coexisting mental disorders did not lend themselves to distinct and separate disability evaluations without violating the fundamental principle related to pyramiding. Pyramiding was defined as granting separate evaluations for the same disability under various diagnoses or using the same symptoms to assign separate evaluations. Thereafter, by a written statement submitted by the Veteran in May 2012, the Veteran withdrew from consideration the issue of service connection for acquired psychiatric disorder (other than service-connected dysthymic disorder), to include PTSD. As the Veteran has withdrawn his appeal as to that issue, there remain no allegations of errors of fact or law for consideration. In this regard, the Veteran previously withdrew from appellate consideration claims for service connection for disability of the knees and for residuals of exposure to asbestos at the 2002 DRO hearing and he also withdrew the claim for service connection for disability of the feet claimed as arthritis which was the basis for the dismissal of that claim in the February 2011 Board decision. Thus, the Veteran was well aware of the impact of such a withdrawal of a claim. Accordingly, the Board does not have jurisdiction to review the appeal on the issue of service connection for an acquired psychiatric disorder (other than service-connected dysthymic disorder), to include, and that claim is dismissed without prejudice. ORDER The appeal for service connection for service connection for an acquired psychiatric disorder (other than service-connected dysthymic disorder), to include PTSD is dismissed. REMAND The Veteran was provided VA examinations for rating his service-connected GERD in 2001, 2004, and more recently in 2011. However, the Veteran has recently stated that he was seen at the Jacksonville Methodist Hospital's emergency room because he thought he was having a heart attack but that it turned out that he was having an exacerbation of symptoms of GERD. However, these records are not on file. Because the record is incomplete, these records must be obtained to fairly adjudicate this claim. Thus, the Veteran must be contacted to provide the inclusive date(s) of the treatment described above and he must requested to execute and return the necessary authorization form for the release of those records to VA. Also, since this issue must be remanded, the Veteran should be afforded an up-to-date VA gastrointestinal examination for the purpose of evaluating the severity of the service-connected GERD. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPCGPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). With respect to the Veteran's TDIU claim, the Board finds that the resolution of the Veteran's outstanding claim for an increased rating for service-connected dysthymic disorder, currently rated 50 percent disabling, may impact the claim for a TDIU rating. Indeed, if the evaluation of that disorder is increased, and a single or combined 100 schedular evaluation resulted, the TDIU issue will be rendered moot. See Green v. West, 11 Vet. App. 472, 476 (1998), (citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994)); VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999). As the RO has not considered the matter of the Veteran's entitlement to an increased rating for service-connected dysthymic disorder the Board does not currently have jurisdiction of this issue, it must be addressed by the RO, in the first instance. If the RO denies such an increased rating the RO must give the Veteran notice of the decision, and opportunity to perfect an appeal as to that issue. The Board emphasizes to the Veteran that, if he wishes to pursue an appeal of any denial of an increased rating for service-connected dysthymic disorder a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). Under these circumstances, the Board finds that, as the Veteran's outstanding claim for an increased rating for the service-connected dysthymic disorder is inextricably intertwined with the TDIU issue, they should be considered together. Thus, a decision by the Board on the Veteran's TDIU claim would now be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Veteran is service-connected for a dysthymic disorder, rated 50 percent disabling since April 3, 2000, and for GERD with hiatal hernia, rated 30 percent disabling since April 3, 2000, resulting in a combined disability rating of 70 percent, since April 3, 2000. Thus, he mets the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a) but there remains the question of whether he is able to obtain or retain a substantially gainful occupation (the second criteria under 38 C.F.R. § 4.16(a)). In a 1980 claim the Veteran reported being a "journalist/business communicator" with 5 years of professional business experience. He was also a photographer and had some experience working with computers. On VA psychiatric examination in June 2004 the Veteran reported that he was arrested in 1981 and thereafter served two years in jail. He reported having attended college for three years. He had not worked since 2000. His last job was delivering tires to distributors but he had been fired after less than a month because of physical problems. He reported walking with a limb and having trouble ambulating. In the 1980s he had driven a taxi for two years but could not make enough money to continue that work. He had worked odd jobs since the 1970s. His work history appeared very inconsistent. He reported that he current sold firewood to help pay his rent. He was on food stamps. He spent a normal day working in the yard and collecting firewood. He had last been homeless in 1999. He reported that for years he had slept excessively, often at least 12 hours daily. Virtual VA records entered into system May 2012 show that the Veteran received VA treatment from May 2001 to April 2012. Cumulatively, these show that his personal medical history was positive for degenerative joint disease (DJD) of the spine, DJD of the knees, hypogonadism (for which he injected himself with testosterone), nicotine dependency, hypertension, GERD, chest pain, and morbid obesity. He was not taking medication for dysthymia. The VA CAPRI records in Virtual VA show that in February 2002 it was noted that the Veteran was in a motor vehicle accident (MVA) in August 2000 at which time he injured head, neck, shoulders, low back and left knee. He was not hospitalized but he was seen in an ER and released. He was on bed rest for 2 weeks. He was treated with medication, possibly Codone, knee brace and exercises; and pain improved after about a year and he tried to return to work as a truck driver. Also, he was unemployed. He had applied for Social Security disability but had been denied. At the September 2002 DRO hearing the Veteran testified that during service he was, for a while, a public affairs journalist. He was not currently employed and had not been for a long time. He had made a little money doing some painting and cleaning up a senior's place. He had applied for Social Security benefits in 2001 and been rejected. In the Veteran's April 2008 claim for a TDIU rating, VA Form 21-8940, Application for Increased Compensation Based on Unemployability the Veteran reported having two years college of education and that he had last worked in temporary food services/odd jobs in 2001. Prior to that, he had been employed by Pantry Pride Stores and Federal Reserve Bank. Prior to his military service he had worked as a stocker for Winn-Dixie. He reported that he was unemployed and not able to work due to service connected dysthymic disorder and nonservice-connected PTSD. Also, he stated that he had not attempted to obtain employment since he became too disabled to work. In a July 2008 rating decision, denying a TDIU rating, the Veteran was advised that he had not provide a complete address for his previous employers, as requested, and so the RO was not able to send a VA Form 21-4192 request for employment information in connection with claim for disability benefits to each of your former employers. He was further advised that he had been sent a letter on May 15, 2008 and advising him that the complete address of his previous employers was needed in order to obtain his employment records but that, as of that July 2008 rating decision, there had been no response. In September 2008, the Veteran notified VA that he had been in receipt of Supplemental Security Income (SSI) for orthopedic disabilities for 18 months although his SSI benefits had been discontinued by SSA. These same Virtual VA records show that in January 2009 it was noted that he had 2 years of college education. In September 2008, the Veteran notified VA that he had been in receipt of Supplemental Security Income (SSI) for orthopedic disabilities for 18 months although his SSI benefits had been discontinued by SSA. These same Virtual VA records show that in January 2009 it was noted that he had 2 years of college education. Virtual VA records entered into system October 2012 show that the Veteran received VA treatment from April to September 2012. In June 2012 he received injections of steroids into each knee and it was noted that he was diabetic. A July 2012 entry indicates that a PTSD screening test was negative. Also in July 2012 it was noted that he had ridden his bicycle 10 miles the day before, after not being active for a long time. He had a history of arthritis and most of his pain was usually in his back or knees. He had had a past ankle injury and rated his pain in that area as "15" on a scale from one to ten. He had not tried homecare measures except to take his pill of morphine and Naproxen, which he usually took for back pain. In August 2012 he again received injections of steroids into each knee for treatment of arthritis (as he has on multiple occasions over the years). In September 2012 it was noted that he had problems ambulating, and mostly sat or lay around his house. Given the foregoing, the Board finds that the Veteran to undergo further VA examination to obtain a medical opinion as to whether he is rendered unemployable solely as a result of his service-connected disabilities. The examiner should clearly opine whether the Veteran's service-connected disabilities, either individually or in concert, render him unable to obtain or retain substantially gainful employment. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, shall result in a denial of the claim for a TDIU (which is a claim for increase). See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The Veteran should be given another opportunity to present information and/or evidence pertinent to the appeal. The RO's letter to the Veteran should explain that the Veteran has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, an attempt should be made to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. This should include the full name and complete address of his past employers, so that VA may send a VA Form 21-4192 request for employment information to each of former employers. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. The Veteran should be contacted and requested to provide the inclusive dates of treatment at the Jacksonville Methodist Hospital when he was seen to an exacerbation of symptoms due to GERD. Also, he should be requested to execute and return the necessary authorization form for the release of those records to VA. 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If the Veteran provides the names and addresses of his past employers, take the appropriate steps to send them a VA Form 21-4192 request for employment information. If any records sought are not obtained, the RO should notify the Veteran (and any representative, should he obtain representation) of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA gastrointestinal examination to determine the severity of his service-connected GERD with a hiatal hernia. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported. The examiner should render specific findings as to the existence (and, if found, the frequency or severity, as appropriate) of any current symptoms of GERD and a hiatal hernia to include any symptoms of epigastric distress, including whether such is persistently recurrent; dysphagia; pyrosis; regurgitation; substernal or arm or shoulde pain which are productive of considerable impairment of health; as well as any symptoms of pain, vomiting, material weight loss and hematemesis or melena, anemia (including whether any anemia is moderate) and any other symptoms productive of severe impairment of health. The examiner should set forth all examination and testing results, along with the complete rationale for any conclusions reached in a printed (typewritten) report. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a single VA examination, by an appropriate examiner at a VA medical facility, to obtain an opinion addressing the impact of the Veteran's service-connected disabilities on his employability. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. Based on examination of the Veteran, and review of the record, the examiner should describe the functional effects of each service-connected disability on the Veteran's ability to perform the mental and/or physical acts required for substantially-gainful employment. Then, the examiner should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that-without regard to the Veteran's age or impairment from any nonservice-connected disabilities-the Veteran's service-connected disabilities, either individually or in concert, render(s) him unable to obtain or retain substantially gainful employment. In rendering the requested opinion, the examiner should consider discuss the pertinent medical and other evidence of record, including the prior VA examination reports which reflect evaluation each service-connected disability. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested 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, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. Prior to adjudication of the claim for an increased rating for service-connected dysthymic disorder, accomplish all need development as to that claim. This should include providing the Veteran with appropriate VCAA notice and assistance. Adjudicate the claim for an increased rating for service-connected dysthymic disorder. 9. Then readjudicate the claim for an initial rating in excess of 30 percent for GERD with a hiatal hernia, and also adjudicate the issue of an increased rating for the service-connected dysthymic disorder and then the claim for a TDIU, in light of all pertinent evidence and legal authority. 10. If the claim for an increased rating for service-connected dysthymic disorder is denied, provide to the Veteran notice of the denial and of the Veteran's appellate rights, and afford him full opportunity to perfect an appeal as to that matter. If the Veteran disagrees with the adjudication of the claim for an increased rating for service-connected dysthymic disorder, follow the appropriate procedure for appellate development, i.e., the issuance of a Statement of the Case, and inform the Veteran that he must perfect the appeal by filing a Substantive Appeal, VA Form 9 or equivalent. 11. If the claim for for an initial rating in excess of 30 percent for GERD with a hiatal hernia remains denied or if the claim for a TDIU remains denied, furnish the Veteran a Supplemental Statement of the Case (SSOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims files are returned to the Board. If the claim for an increased rating for service-connected dysthymic disorder is denied, to avoid piecemeal litigation, the RO should not return the claim files to the Board until the Veteran has perfected an appeal of that matter, or the time period for doing so has expired, whichever occurs first. 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 Department of Veterans Affairs