Citation Nr: 1326178 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 08-05 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating higher than 50 percent for depressive disorder, not otherwise specified (NOS). ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from November 2000 to March 2006. This appeal to the Board of Veterans' Appeals (Board/BVA) originates from March 2007 and May 2008 rating decisions in which the Department of Veterans Affairs (VA) Regional Office (RO) granted the Veteran's claim for service connection for depressive disorder, NOS, and assigned an initial 10 percent rating for this disability retroactively effective from March 13, 2006, so back to the day after his military service ended. However, the RO instead denied his claims for service connection for left shoulder and arm and low back disabilities and for a total disability rating based on individual unemployability (TDIU). He appealed the denials of service connection and a TDIU and for an initial rating higher than 10 percent for his psychiatric disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals his initial rating, VA must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of his award to compensate him for occasions when his disability has been more severe than at others). In rating and Decision Review Officer (DRO) decisions since issued in June 2008, December 2009 and February 2011, the RO increased the initial rating for the depressive disorder, NOS, first to 30 percent and then to 50 percent with the same retroactive effective date of March 13, 2006, which is the earliest possible effective date that may be assigned for these higher ratings. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Veteran since has continued to appeal for an even higher rating, so his appeal of this claim now concerns whether he is entitled to an initial rating higher than 50 percent for this mental disorder. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible rating for this disability, unless he expressly indicates otherwise). In December 2011, the Board issued a decision denying an initial rating higher than 50 percent for the depressive disorder, NOS, and remanding the remaining claims for service connection for left shoulder and arm and low back disabilities and a TDIU for additional development. The Board also remanded a claim for an increased (compensable) rating for positive tuberculin for the purpose of issuing the Veteran a statement of the case (SOC) concerning that other claim. See Manlincon v. West, 12 Vet. App. 238 (1999). He appealed the Board's decision denying an initial rating higher than 50 percent for his depressive disorder, NOS, to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). A private attorney represented him in his appeal to the Court, and VA's Office of General Counsel represented the Secretary. They filed a Joint Motion for Remand in September 2012, which the Court granted in an October 2012 Order. The claims the Board had remanded in December 2011 were not addressed in the Court's Order because they were not decided, so not finally adjudicated and resultantly not on appeal to the Court. According to the terms of the Joint Motion, VA has a duty to assist a claimant by providing a thorough and contemporaneous medical examination when, as here, the record does not adequately reveal the current state of the claimant's disability. The parties pointed out that, in determining the severity of the Veteran's psychiatric disability, an April 2008 VA examiner did not note or discuss a February 2008 private examiner's report showing more severe psychiatric symptomatology and an October 2009 VA examiner did not review the claims file or medical reports of record. Because of this, the parties agreed that another psychological examination was needed, during which an examiner was to review all of the evidence of record, including private and VA medical records. So to assist in complying with the terms of the Joint Motion, the Board in turn remanded this claim to the RO in April 2013. As instructed, the Board ordered the RO to schedule the Veteran for another, more comprehensive, VA psychiatric evaluation. As well, the Board ordered the RO to obtain and associate with the claims file all pertinent outstanding treatment records. The report of the VA psychiatric examination is inadequate to decide this claim, however, requiring another remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REMAND The Board sincerely regrets the delay that invariably will result from this additional remand, but it is necessary to ensure a complete record and so the Veteran is afforded every possible consideration. See 38 C.F.R. § 19.9 (2012). As already alluded to, in April 2013 the Board remanded this claim for several reasons, including to schedule the Veteran for a more comprehensive VA psychiatric examination. The VA examiner was to review all pertinent evidence in the claims file, including a February 2008 private examiner's report showing an increase in severity of the Veteran's psychiatric symptoms. The Board explained that, in order to determine whether "staged" ratings could be assigned the Veteran's psychiatric disability, it needed the examiner to assess the severity of the disability since the Veteran's discharge from service in March 2006. The Board asked the examiner to compare his/her findings to those noted in VA examination reports dated in March 2007, April 2008 and October 2009 and in the February 2008 private examiner's report. But the VA examiner did not comply and, as such, her report is unresponsive to the determinative issue in this case, that is, the severity of the Veteran's psychiatric disability since the conclusion of his service. An addendum opinion therefore must be obtained before readjudicating the claim. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability is a fully informed one). See also D'Aries, at 105 (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Return the claims file to the VA examiner who evaluated the Veteran's mental health in April 2013 for an addendum opinion. Explain to the VA examiner that, in order to determine whether "staged" ratings can be assigned the Veteran's psychiatric disability, it needs the examiner to assess the severity of the disability since the Veteran's discharge from service in March 2006. Request the examiner do the following prior to expressing any further opinion: a. Review the claims file, particularly the reports of VA mental health examinations performed in March 2007, April 2008 and October 2009 and the report of a private mental health evaluation performed in February 2008; b. Indicate in writing in the report that the review included this pertinent information; c. Identify all psychiatric symptoms the Veteran manifested since his discharge from service, including any shown between 2007 and 2009; d. Compare the findings noted in the April 2013 VA examination report with those noted in the March 2007, April 2008 and October 2009 VA examination reports and the February 2008 private examiner's report; e. Specifically indicate whether the February 2008 private examiner's report reflects a worsening of the Veteran's psychiatric symptoms and, if so, indicate whether and when, after that evaluation, the Veteran's symptoms became less severe; f. Provide detailed rationale with references to the record for all opinions expressed; and g. If an opinion cannot be expressed without resorting to mere speculation, indicate in writing in the record why such is the case and what evidence is needed to aid in providing such an opinion. In other words, merely saying she cannot respond will not suffice. If, for whatever reason, it is not possible to have this same VA examiner provide this further comment (supplemental/addendum opinion), then have someone else do it who has the necessary qualifications and expertise. In this eventuality, this may require having the Veteran reexamined, but this is left to the designee's discretion. 2. Review the addendum opinion to ensure it includes all requested information and, if not, return it to the examiner for correction. 38 C.F.R. § 4.2. 3. Then readjudicate this claim in light of this and all other additional evidence, including that in Virtual VA. If this claim continues to be denied, send the Veteran a supplemental statement of the case (SSOC) and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).