Citation Nr: 1321445 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 08-14 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial rating higher than 30 percent for mood disorder. (The issues of entitlement to service connection for posttraumatic stress disorder and hepatitis C, a rating higher than 30 percent for asthma, and a total disability rating for compensation based on individual unemployability will be the subject of a separate decision pending completion of further development of the claims.) REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1969 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for depression and assigned a 10 percent disability rating, effective in January 2007. The Veteran's notice of disagreement with the rating assignment was received in November 2007, a statement of the case was issued in April 2008, and a substantive appeal was received in May 2008. In a March 2008 rating decision, the RO granted a 30 percent rating for mood disorder, due to general medical condition, which was previously classified as depression associated with asthma (hereinafter "mood disorder"), effective from January 2007. The Veteran continued his appeal for a higher initial rating. In December 2011, the Veteran appeared at the RO and testified at a videoconference hearing that was conducted by the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the claims file. In a May 2012 decision, the Board denied the Veteran's appeal for an initial rating higher than 30 percent for mood disorder, and remanded to the RO for additional development four additional issues that were also on appeal. The Veteran appealed the Board decision regarding the mood disorder to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Order, the Court granted a Joint Motion for Partial Remand of the parties (the VA Secretary and the Veteran), vacated the Board's May 2012 decision in regard to the mood disorder rating that was decided, and remanded the case back to the Board pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Joint Motion. In February 2013, the Veteran through his attorney has submitted additional evidence in the form of a private psychological report dated in January 2013 and updated VA medical records. This evidence was accompanied by a statement in which the Veteran waived initial RO consideration of the evidence, in accordance with 38 C.F.R. § 20.1304. As noted on the title page to this document, a decision on the claims of entitlement to service connection for posttraumatic stress disorder and hepatitis C, a rating higher than 30 percent for asthma, and a total disability rating for compensation based on individual unemployability is being deferred pending further development of the claims and readjudication by the RO. Therefore, the Board does not presently have jurisdiction over them, and they are referred to the RO for completion of actions as outlined by the Board in its May 2012 Remand. The appeal is REMANDED to the RO. REMAND As earlier noted, this case has been remanded back to the Board from the Court, after the Court in September 2012 granted a Joint Motion for Partial Remand. In the Joint Motion, the parties agreed that the Board did not furnish an adequate statement of reasons or bases in support of its decision to deny an initial rating higher than 30 percent for the Veteran's service-connected mood disorder. Specifically, it was found that the Board's discussion was limited to the particular symptomatology that is provided for the 50 percent rating under the Schedule for Rating Disabilities at 38 C.F.R. § 4.130, for mental disorders, and that the Board did not adequately consider the Court's holding in Mauerhan v. Principi, 16 Vet. App. 436 (2002). In that decision, the Court explained that symptoms listed in 38 C.F.R. § 4.130 "are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan at 442. The Court also emphasized that the Board need not "find the presence of all, most, or even some, of the enumerated symptoms" in order for an appellant to establish entitlement to a particular rating and explained "the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code." Id. at 443. After the Court's September 2012 Order, the Veteran's attorney representative submitted additional evidence and argument in support of his claim. In pertinent part, the evidence included a private psychological report prepared in January 2013, wherein K. Kirkland, Ph.D., reviewed the Veteran's entire claims files (as provided by the Veteran's attorney), interviewed the Veteran, administered various psychological tests, and furnished conclusions based on findings within a comprehensive report. Dr. Kirkland acknowledged that the reason the Veteran was referred to him was to that he could determine, among other things, his current psychiatric diagnoses, whether the symptoms of his psychiatric conditions could be separated, and the onset of the Veteran's mood disorder. Following evaluation, the Veteran was diagnosed with posttraumatic stress disorder, chronic; and major depressive disorder, recurrent, severe with psychotic features. Dr. Kirkland also commented that many mood disorder symptoms overlapped with posttraumatic stress disorder symptoms and that there were "certainly a number of distinguishable features between the two disorders with respect to certain symptoms" although distinguishing all symptoms "would be difficult and require speculation." Dr. Kirkland, however, did not enumerate the known symptoms attributable to mood disorder and those that could not be distinguished from posttraumatic stress disorder. In his summation, Dr. Kirkland opined that based on a review of VA's disability rating criteria, the Veteran's mental disorders seemed to meet the criteria for a 70 percent rating. He also found that the Veteran was unlikely to ever be considered employable. It is noted that service connection for posttraumatic stress disorder has not been established and that a total disability rating for compensation based on individual unemployability has not been assigned, although these claims are on appeal and awaiting further development as outlined in a Board remand of May 2012, including a VA examination. The Board further observes that in a February 2013 statement, the Veteran's attorney asserted that on the basis of the updated records in the file to include Dr. Kirkland's expert opinion, the record was sufficient to grant the Veteran's claim at this time and a remand was unnecessary. The Board disagrees. While Dr. Kirkland's report was indeed comprehensive, the fact that it included an assessment of nonservice-connected posttraumatic stress disorder symptoms, which may not be evaluated for rating purposes, together with symptoms attributable to the Veteran's service-connected mood disorder, without distinguishing the features of each disorder, is not helpful in deciding the claim for a higher rating for mood disorder at this juncture. Although further delay of this case is regrettable, it is necessary in order to afford the Veteran a VA examination for the purpose of distinguishing symptoms attributable to the service-connected mood disorder from other nonservice-connected disorders. Moreover, based on Dr. Kirkland's conclusion that the Veteran's major depressive disorder is severe, it appears that the Veteran's service-connected mood disorder may have increased in severity. Likewise, the several volumes of updated VA outpatient records dated from 2010 to the present, showing frequent visits to the mental health clinic for complaints and treatment of such symptoms as anxious mood, paranoia, auditory hallucinations, and suicidal thoughts, appear to demonstrate a worsening mental condition. Due to evidence suggestive of a material change in the disorder, a re-examination under 38 C.F.R. § 3.327(a) is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected mood disorder, as distinguished from any other nonservice-connected mental disorder. [Note that in a May 2012 Remand, the Board directed that the Veteran undergo a psychiatric examination to determine whether the Veteran had a diagnosis of posttraumatic stress disorder, and if so, whether posttraumatic stress disorder was related to claimed military sexual assault. Such examination has not been shown to have taken place, so in the interests of expediency the RO should consider scheduling a single VA examination to address both the severity of the mood disorder as well as the claim involving posttraumatic stress disorder.] The claims file, to include all VA mental health outpatient treatment records, VA examination reports of August 2007, January 2009, and September 2010, and the private psychological report prepared by Dr. Kirkland in January 2013, must be made available to and reviewed by the examiner. The examiner should provide accurate and fully descriptive assessments of all psychiatric symptoms, and in particular should comment upon the frequency or severity of the Veteran's mood disorder symptoms as distinguished (to the extent possible) from all other nonservice-connected mental disorders. The examiner should also enter a complete multiaxial evaluation, and assign a Global Assessment of Functioning (GAF) score, together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. A complete rationale for all opinions must be provided. 2. After the development has been completed, adjudicate the claim for an initial rating higher than 30 percent for mood disorder. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).