Citation Nr: 1319723 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-21 488 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD WITH MAJOR DEPRESSIVE DISORDER) with major depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This appeal to the Board of Veterans Appeals (Board) arose from a February 2008 rating decision in which the RO granted service connection and assigned an initial 50 percent rating for PTSD with major depressive disorder, effective March 21, 2007. The Veteran filed a Notice of Disagreement (NOD) with the assigned ratings in September 2008. The RO issued a statement of the Case (SOC) in April 2009. In June 2009, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board). As regards characterization of the appeal, the Board points out that in his substantive appeal, the Veteran raised what the RO construed as an informal claim for a total disability rating based on individual unemployability (TDIU), y due his service-connected psychiatric disability and nonservice-connected physical disability-heart disease. In May 2011, the RO denied the Veteran a TDIU, a decision that he did not appeal. On these facts, a because there has been no allegation or showing that the service-connected psychiatric disability, alone, renders the Veteran unemployabile, the matter of a TDIU is not considered a component of the current claim for higher rating for psychiatric disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For the reasons expressed below, the matter on appeal 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. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. The most recent VA examination for the Veteran's service-connected psychiatric disability was in December 2010. In the June 2013 Appellant's Brief, the Veteran's representative essentially argued that the symptoms associated with the PTSD with major depressive disorder had increased in severity since December 2010. On these facts, the Board finds that the medical evidence currently of record is inadequate to resolve this claim, and that a further examination, with findings responsive to the applicable rating criteria, and appropriate medical opinion, is needed. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran was scheduled for an examination to evaluate the current severity of his disability in November 2012 but he failed to report for the examination. Notably, the Veteran called to cancel the VA examination as he was scheduled to undergo surgery. He indicated that he would call back to reschedule his VA examination after his surgery. In November 2012 correspondence, VA noted that the Veteran never called back to reschedule and that they were unable to reach the Veteran. It is unclear whether or not the Veteran was actually undergoing surgery when VA attempted to contact him, as it was all within the same month. Consequently, as noted, the Veteran should be rescheduled for the VA examination. Accordingly, the RO should arrange for the Veteran to undergo VA mental disorders examination, by an appropriate medical professional, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim for a higher, initial rating, and shall result in denial of the claim for increased rating. See 38 C.F.R. § 3.655(a), (b) (2011). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should also undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent record, As regards VA records, a review of the Veteran's electronic Virtual VA file reveals the most recent mental health treatment record is dated November 20, 2012. In that record the Veteran was scheduled to return to the clinic in three weeks to be seen for his depression and PTSD with major depressive disorder. As this suggests outstanding VA treatment records, the RO should obtain any outstanding VA treatment records since November 2012. On remand, the RO should 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) (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, the RO should attempt 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 Claims Assistance 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 claims on appeal. The RO's adjudication of the claim for a higher initial rating should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Additionally, the RO's adjudication of the claim should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), consistent with Fenderson v. West, 12 Vet. App. 119, 126 (1999) as appropriate, is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from November 26, 2012 to the present. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal. 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained notify the Veteran 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, arrange for the Veteran to undergo VA mental disorders examination, by an appropriate professional, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, along with copies of pertinent records on Virtual VA (if the examiner does not have access) , must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include psychological testing, if deemed warranted) should be accomplished (with all results made available to the examining psychiatrist or psychologist prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's PTSD with major depressive disorder, and an explanation of what the score means. Based on review of the Veteran's documented medical history and assertions, the examiner should also indicate whether, at any time since the March 21, 2007 effective date of the award of service connection for PTSD with major depressive disorder, the Veteran's service-connected psychiatric disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. 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. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for a higher initial rating for PTSD with major depressive disorder in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication of the claim) and legal authority (to include consideration of whether "staged" rating of the Veteran's disability, pursuant to Fenderson (cited above) is appropriate). 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).