Citation Nr: 1325945 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-18 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a disability rating in excess of 60 percent for a thyroid disability, total thyroidectomy, with depressive disorder. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active service from January 1990 to April 1990 and from September 1990 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for depression and combined the evaluation of this disorder with the Veteran's service-connected thyroid disorder. In the February 2011 rating decision, the RO determined that, even considering the depressive symptoms, a rating higher than 60 percent for the thyroid disability was not warranted. In May 2011, the Veteran disagreed with the 60 percent evaluation assigned for the thyroid disability with depressive disorder, and he subsequently perfected his appeal with regard to this issue. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND After carefully reviewing the claims file, the Board finds that a remand is necessary for additional development. Although the present appeal was initiated in response to a February 2011 rating decision that granted service connection for depression, the crux of the appeal is whether a rating in excess of 60 percent is warranted for the Veteran's overall thyroid disability with depressive symptoms. The Board recognizes that a VA examination was provided in December 2010 to assess the Veteran's psychological complaints. However, at no time during the appellate period was the Veteran provided with an examination that contemplated his overall thyroid disability and its current manifestations. Therefore, there is no contemporaneous examination on which the Board may rely. The Board recognizes that the "mere passage of time" between a prior VA medical examination and the adjudication of a claim is not, in and of itself, sufficient to compel VA to provide the veteran with a new, contemporaneous medical examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). However, in cases such as this, where there is no adequate evaluation of the Veteran's disability throughout the entire appellate period, a contemporaneous examination is needed. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support a decision on appeal for an increased rating); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity). Here, the Veteran has asserted that a 100 percent rating is warranted, and he has submitted VA treatment records reflecting problems with control of his thyroid disorder. See, e.g., February 2010 VA treatment report (assessing "hypothyroidism...not currently controlled"). This evidence is suggestive of an increase in symptoms since the Veteran was last evaluated for his thyroid condition. Thus, the Board finds that the existing medical evidence is inadequate to assess the current level of severity of the Veteran's thyroid disability. For these reasons, on remand, the RO is requested to schedule the Veteran for a VA examination to assess the current nature and severity of the Veteran's service-connected thyroid disability with depressive disorder. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The RO/AMC should obtain a new VA examination regarding the nature and severity of the Veteran's thyroid disability with depressive disorder. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the examination. (a) All pertinent symptomatology and findings must be reported in detail; and (b) The examiner must adequately identify all manifestations associated with the Veteran's thyroid disorder, and, if deemed necessary and appropriate, consider whether additional testing is needed to adequately evaluate these manifestations (e.g. for further psychological evaluation, etc.). All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 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). _________________________________________________ WAYNE M. BRAEUER 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).