Citation Nr: 1321656 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 03-30 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to higher initial ratings for dementia associated with cerebrovascular disease, currently rated 30 percent disabling prior to December 21, 2011 and 50 percent disabling thereafter. 2. Entitlement to a separate initial rating for depression associated with service connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active military duty from November 1968 to July 1970. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for major depressive disorder associated with service connected disabilities. In June 2007, the Board, in pertinent part, denied service connection for a psychiatric disorder secondary to diabetes and remanded the issue of mental manifestations of service connected cerebrovascular disease. (The present appeal does not encompass any manifestations of cerebrovascular disease other than dementia and depression.) In June 2010, the Board again remanded the appeal and recharacterized the issue as a rating for dementia associated with cerebrovascular disease. The RO in Huntington, West Virginia, then reviewed the claim, and by a February 2012 rating action granted an initial 50 percent disability rating effective from December 21, 2011, for "dementia with depression associated with cerebrovascular disease." In May 2012, the Board found that the medical evidence suggested separate and distinct manifestations of depression and dementia as associated with service connected disabilities. The Board remanded the issue for the RO/AMC to assign separate ratings for depression and dementia. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Hence, the appeal has been separated into two issues, as reflected on the title page. In December 2012, the RO/AMC assigned a noncompensable rating for depression prior to December 21, 2011 and a 30 percent rating thereafter. In May 2013, the Board remanded the issue of a higher initial rating for dementia for the RO/AMC to consider additional evidence suggesting that the Veteran met the criteria for a 30 percent rating prior to December 21, 2011. The same month the RO/AMC awarded a 30 percent rating prior to December 21, 2011 for dementia, but collapsed the dementia and depression ratings into a single evaluation. The Virtual VA paperless claims processing system contains VA treatment records from July 2011 to December 2012 are of record. The RO considered these updated VA treatment records in the May 2013 Supplemental Statement of the Case. The issue of a separate rating for service connected depression due to service connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to December 21, 2011, the clinical signs and manifestations of the Veteran's dementia more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as depressed mood, sleep disturbances, and mild memory loss. 2. Beginning December 21, 2011, the clinical signs and manifestations of the Veteran's dementia more nearly approximate occupational and social impairment with reduced reliability and productivity due to sleep disturbances, anxiety including panic attacks, social withdrawal, isolative behaviors, irritability, and depressed mood, among other symptoms. CONCLUSIONS OF LAW 1. Prior to December 21, 2011, the criteria for an initial rating in excess of 30 percent for dementia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). 2. Beginning December 21, 2011, the criteria for an initial rating in excess of 50 percent for dementia have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim on appeal has been accomplished. The issue being decided on appeal arises from disagreement with the initial rating following the grant of service connection. The Courts have held that once service connection is granted, the claim is substantiated. Additional VCAA notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, there is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records and VA treatment records are available. He was provided an appropriate VA examination for his claim in December 2011. The report contains sufficient evidence by which to evaluate the Veteran's dementia associated with service connected cardiovascular disease in the context of the rating criteria. The record does not show that his dementia symptoms associated with cardiovascular disease have materially increased since the most recent examination. VA has properly assisted the Veteran in obtaining any relevant evidence. The Board also finds that the record reflects substantial compliance with its May 2012 and May 2013 remands. In May 2013, the RO recognized dementia associated with cerebrovascular disease as a separate disability and assigned the current initial ratings 30 percent prior to December 21, 2011 and 50 percent thereafter. The agency of original jurisdiction (AOJ) then readjudicated the claim by way of a May 2013 Supplemental Statement of the Case. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied and that there was at least substantial compliance with all terms of its May 2012 and May 2013 remands for the issue decided herein. See D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)); Stegall v. West, 11 Vet. App. 268 (1998). II. Increased rating Laws and regulations Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). A Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). While VA adjudicators will consider the extent of social impairment, they shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. Dementia is rated under 38 C.F.R. § 4.130, DC 9434, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 30 percent evaluation is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is 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. A 70 percent disability rating is warranted when there is 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 worklike setting); and inability to establish and maintain effective relationships. The list of symptoms under the rating criteria are intended to serve as examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Also of relevance here, the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Id. A GAF score of 41-50 is assigned where there are, "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score of 51-60 rating indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. Id. Factual Background VA treatment records dated in October 2004 show that the Veteran's wife thought his memory problems had increased and that he had undergone some personality changes. The clinician noted August 2004 findings indicating that the Veteran had a mild cognitive impairment with normal labs and MRI studies. The Veteran underwent a neuropsychology examination in December 2004. He was fully oriented and cooperative. Language function was grossly normal. The examiner noted mild problems with word finding. He had some mildly impaired scores on memory tests. The examiner concluded that the Veteran had mild overall impairment due to longstanding cerebral deficiency. She noted that his memory was less impaired than several other cognitive functions. VA treatment records from May 2005 show that the Veteran was treated for vascular dementia. He had episodes of left sided upper body and face weakness over the past two to three months. Upon clinical examination, the treating VA clinician described the Veteran as having slow mentation, noting that he exhibited tangential thought processes and had trouble responding to questions. However, she reported that his mood and communication capabilities were normal. She placed a neurology referral. The Veteran had a VA psychiatric examination in June 2005. The examiner noted that the initial mental health clinic referral occurred about two years ago based upon complaints of headaches. The Veteran was diagnosed with major depressive disorder, which had improved with medication. He currently denied sleep problems, panic symptoms, or psychosis. He had suffered two strokes with left hemiparesis, in 1972 and 1998. Mental status examination showed him to present with an appropriate appearance and hygiene with good speech function. He made appropriate eye contact and was cooperative. However, he answered questions in short expressions. Thought content did not suggest the presence of any psychosis. He could subtract serial 5s without difficulty and spell "help" forwards and backwards. He was aware of current events and fully oriented to his surroundings. Nonetheless, the examiner commented that he appeared tired and sluggish in his responses. He diagnosed major depressive disorder, in remission. He commented that the Veteran did not display any dementia symptoms and described his mental condition affecting his social and occupational function to only a mild degree. A GAF of 75 was given. The Veteran had a VA neurology examination in July 2005, which showed mild left upper extremity weakness due to diabetes. VA mental health clinic (MHC) records dated in May 2006 reflect treatment for depression. Symptoms were improving with medication. The examiner observed that the Veteran talked more slowly than usual. However, mental status examination was unremarkable and speech was clear and coherent. VA treatment records dated in September 2008 show that the Veteran was stable on psychiatric medication. Mental status examination was grossly normal and his thoughts were organized. The Veteran denied any psychotic type symptoms. The examiner assessed insight and judgment as good. Nonetheless, a GAF of 45 was listed. In October 2009, the Veteran underwent a VA psychiatric consultation for anxiety. He reported numerous anxiety type symptoms, including intrusive memories, poor sleep, avoidant behaviors, and irritability among others. He denied homicidal or suicidal ideations or other psychosis. Mental status examination was normal with the exception of anxious mood. A GAF of 45 was continued. Then in January 2010, the Veteran had a psychiatric consultation for admission into a VA posttraumatic stress disorder (PTSD) treatment program. He presented with an appropriate appearance and affect. His speech was fluent and his thought processes were logical and goal directed. VA medication management entry from February 2010 reflects a grossly normal mental status examination. His thought processes and content were normal. A GAF of 50 was listed. VA treatment records dated in October 2010 show that the Veteran had feelings of depression and occasional falls from light headedness. He also complained of memory problems. His memory, concentration, and attentions were characterized as poor. Mental status examination showed him to be fully oriented with good speech. Thought process, content, and insight were deemed to be normal. A GAF of 65 was listed. The Veteran had a VA psychiatric examination in December 2011. The examiner assessed dementia, which caused moderate deficits in recent memory, poor orientation towards dates, and poor concentration. She distinguished these symptoms as being separate from the mood disturbance of depression. She characterized the Veteran as having occupational and social impairment with reduced reliability and productivity. She commented that the dementia reduced short term memory and caused poor concentration. She noted symptoms of mild memory loss, such as forgetting names, directions, or recent events. She diagnosed vascular dementia and assigned a GAF score of 60 for moderate symptoms. She also reviewed a January 2012 psychology consultation in an addendum. It reflected a diagnosis of vascular dementia. His retentive auditory-visual memory was a relative strength as it was only mildly impaired. However, he had difficulty with higher order executive functions, ideational fluency, planning, dual attention focus, problem solving and reasoning, mental flexibility, information processing, and motor function. At the January 2012 VA neurology examination, the examiner did not identify a separate mental illness as part of his neurological disorder. VA MHC progress notes from February, May, July, and September 2012 showed generally stable cognitive symptoms. However, in November 2012, the Veteran had an inpatient admission after exhibiting an unsteady gait. He was found to have small cell cancer of the lung and was given a poor prognosis. The VA psychiatry consultation at that time showed that he did not want to know the lung biopsy results. He reported having decreased sleep, but denied any other psychiatric symptoms. He exhibited psychomotor retardation. The examiner noted rhythmic involuntary movement of his lips, noted as tardive dsykinesia. Mental status examination showed an appropriate appearance and fair mood. His thought processes and content were grossly normal. The psychiatrist assessed major depression (mild by history), PTSD by history, and tardive dyskinesia. He listed a GAF of 65. Analysis The Veteran is in receipt of initial ratings for dementia of 30 percent beginning November 18, 2004, and 50 percent rating beginning December 21, 2011. He contends that higher initial ratings are warranted. (i) Rating in excess of 30 percent prior to December 21, 2011. As noted previously, under the General Rating Formula, a 30 percent evaluation is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is 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. 38 C.F.R. § 4.130. After careful consideration, the Board finds that the criteria for a rating in excess of 30 percent prior to December 21, 2011 for dementia symptoms have not been met. Mauerhan, 16 Vet. App at 442; Vazquez-Claudio, 713 F.3d 112; 38 C.F.R. § 4.130, DC 9434. VA treatment records during this period show that the Veteran had memory impairments that were generally assessed as mild. (See VA treatment records, dated in August 2004, December 2004, May 2005, May 2006, October 2009; VA examination report dated June 2005). Moreover, his psychiatric symptoms associated with dementia did not result in significant communication or cognitive impairments during this period. In concluding that a higher evaluation is not warranted, the Board acknowledges some VA treatment records showing GAF scores indicative of serious symptoms. (See September 2008, October 2009, December 2009, February 2010 VA treatment records). However, the low GAF scores do not comport with the contemporaneous mental status examination findings and subsequent increased score. For instance, September 2008 VA treatment records reflect a GAF of 45. The contemporaneous mental status examination does not suggest the presence of serious symptoms. It reflects that the Veteran presented with appropriate hygiene and grooming. He was alert and oriented and gave responsive answers. He displayed appropriate speech. In other words, the clinical findings are absent serious symptoms to support the low GAF scores. Clinicians also assigned low GAF scores relative to mental status examination findings in the multiple VA treatment records cited above. See id. Notably, his GAF score was increased in October 2010 to 65 for mild symptoms. The GAF scores suggesting serious symptoms are not persuasive in the absence of supportive mental status examination reports. See Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). For these reasons, a rating in excess of 30 percent is not warranted based upon the low GAF scores, as the totality of evidence during the period in question fails to reflect a significant impairment in social or occupational functioning. There is no evidence during this period suggesting a level of severity in communication and memory difficulties due to dementia as contemplated by the 50 percent rating criteria. An initial rating in excess of 30 percent prior to December 21, 2011 for service connected dementia is denied. Mauerhan, 16 Vet. App at 442; Vazquez-Claudio, 713 F.3d 112; 38 C.F.R. § 4.130, DC 9434. (ii) Rating in excess of 50 percent beginning December 21, 2011. Under the general rating formula, a 70 percent disability rating is warranted when there is 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 worklike setting); and inability to establish and maintain effective relationships. The dementia symptoms demonstrated during the period in question do not include the following: suicidal or homicidal ideation, mood disturbance of such severity to compromise his ability to independently function, gross communication or cognitive deficits, psychotic disturbances, or neglect of personal hygiene. The Veteran has maintained family relationships and review of VA MHC treatment records from 2012 do not reflect severe memory deficient or cognitive impairment. For example, in November 2012, a VA psychiatrist successfully interviewed the Veteran. His report indicated that the Veteran was responsive and had awareness of his medical condition and surroundings. He did not list any findings suggestive of severe memory or cognitive deficiency. Treating clinicians have also provided GAF scores of 65 and the VA examiner assigned a GAF of 60, which comported with contemporaneous mental status examinations. (See VA treatment records from February, May, July, and September 2012; December 2011 VA examination report). Overall, the Veteran has not demonstrated dementia symptoms indicative of deficiencies in family relations, thinking, judgment, or mood. There is no showing of deficiencies in most areas or of an inability to establish and maintain effective relationships, such as to support the next-higher 70 percent evaluation. In sum, the criteria for a rating in excess of 50 percent for dementia beginning December 21, 2011 have not been met. Mauerhan, 16 Vet. App at 442; Vazquez-Claudio, 713 F.3d 112; 38 C.F.R. § 4.130, DC 9434. Extraschedular considerations If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). After consideration of the evidence, the Board has determined that referral for an extraschedular rating is not warranted. The Board has considered symptoms of the Veteran's service-connected dementia alone, and in conjunction with his additional service connected disabilities. Mittleider v. West, 11 Vet. App. 181 (1998). The clinical examiners have not identified any unusual or otherwise exceptional symptoms. The primary symptoms of memory impairment and decreased cognitive function are clearly contemplated by the schedular rating criteria. The Veteran will be rated for his separately identifiable depression as directed in the remand instructions below. The record does not otherwise suggest the presence of any extraordinary symptoms or manifestations due to dementia or other service connected disabilities either considered jointly or singly. For these reasons, the Board considers the schedular evaluation to be adequate and referral for extraschedular consideration is not warranted. Thun, supra.; 38 C.F.R. § 3.321. Total disability rating based upon individual unemployability (TDIU) The Court has held that a Total Rating for Compensation Based on Individual Unemployability (TDIU) is an element of all claims for an initial increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record shows that the RO awarded TDIU in an October 2011 rating decision effective July 20, 2005. The Veteran did not appeal the effective date. Beginning December 1, 2010, the Veteran has a total schedular rating. As he is currently in receipt of special monthly compensation (SMC) under subsection (s), the total rating vitiates consideration of TDIU. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). TDIU is not for further consideration at this time. ORDER Entitlement to a higher initial rating for dementia associated with cerebrovascular disease, currently rated 30 percent disabling prior to December 21, 2011 and 50 percent disabling thereafter, is denied. REMAND A remand by the Court or Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to insure compliance. Id. at 270-71. The May 2012 Board Remand instructed the RO/AMC to award a separate rating for depression as secondary to service connected cerebrovascular disease and other service connected disabilities. The May 2013 RO/AMC decision shows that depression and dementia are rated as a single disability. In other words, the RO/AMC has not recognized the separate manifestations of depression secondary to service connected disabilities to comply with the May 2012 Remand. (See May 2013 RO/AMC decision). Corrective adjudicative action is necessary as described. Accordingly, the case is REMANDED for the following action: The RO/AMC should separately service connect depression as secondary to service-connected cerebrovascular disease and other service-connected disabilities. (The RO in Huntington, West Virginia, already implicitly service connected depression by its February 2012 decision when it characterized it as part of the Veteran's service-connected dementia). The RO should then, again with de novo review, assign a separate disability rating to the Veteran's depression, as appropriate, pursuant to Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his authorized representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs