Citation Nr: 1333181	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO. 10-13 754	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois


THE ISSUES

1. Entitlement to service connection for posttraumatic stress disorder (PTSD).

2. Entitlement to rating in excess of 30 percent for depressive disorder.

3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected depressive disorder. 


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A. Lindio, Counsel


INTRODUCTION

The Veteran served on active duty from October 1955 until December 1957. 

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision in which the RO denied service connection for PTSD. Additionally, in a December 2010 rating decision, the RO continued the 30 percent disability rating for depressive disorder (previously diagnosed as bipolar disorder with depression).  In February 2009, the Veteran filed a notice of disagreement (NOD) with the RO's denial of his PTSD claim.  In February 2011, the Veteran filed a NOD for his increased rating claim.  In regards to the PTSD claim, the RO issued a statement of the case (SOC) in March 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010.  As regards the increased rating claim, the RO issued a SOC in June 2012, and the Veteran filed a substantive appeal in August 2012. 

In July 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.  At that time, as will be further discussed in this decision, the Veteran withdrew from appeal his claim for service connection for PTSD, and claimed that he was unemployable due to his service-connected depressive disorder.

In conjunction with the hearing, the Veteran submitted additional evidence and written argument in support of his claims.  This evidence was accompanied by a signed waiver of initial RO consideration.  See 38 C.F.R. §§ 20.800, 20.1304 (2013). 

As explained in further detail below and as reflected in the characterization of the appeal (on the title page), the Board considers the matter of the Veteran's entitlement to a TDIU due to depressive disorder as a component of the claim for a higher rating for depressive disorder.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). 

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the documents in such file reveals that some of the documents in the Virtual VA paperless claims file, i.e., VA treatment records dated from October 1998 to May 2012, are relevant to the issue on appeal and are not duplicative of the evidence in the paper claims file.  However, such evidence was considered by the RO in its preparation of the June 2012 SOC.

The Board's disposition of the claim for service connection for PTSD is set forth below.  The claim for an increased rating for depressive disorder is addressed in the remand following the order; this matter 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.


FINDING OF FACT
	
In July 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, during his July 2013 Board hearing, that he wished to withdraw from appeal his claim for service connection for PTSD. 


CONCLUSION OF LAW

The criteria for the withdrawal of the appeal as to the matter of service connection for PTSD by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. 

In the present case, the appellant has withdrawn the claim for service connection for PTSD on appeal; hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to this matter and it must be dismissed.


ORDER

The appeal as to matter of service connection for PTSD is dismissed.


REMAND

The Board's review of the record reveals that further RO action in the appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matters remaining on appeal.  

First addressing characterization of the appeal, the Board notes that after the issuance of the June 2012 SOC, the Veteran, during his July 2013 Board hearing and in a July 2013 statement, asserted that his service-connected depressive disorder had caused him to be unemployable, thus asserting his entitlement to a TDIU.  See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013).  As this matter has explicitly been raised in the context of his claim for a higher rating, a claim for a TDIU due to the service-connected depressive disorder under consideration is raised as a component of his increased rating claim.  See Rice, 22 Vet. App. at 447.

The Board notes that the RO has not considered the Veteran's entitlement to a TDIU due to depressive disorder, although, in January 2012, during the course of this appeal, the Veteran filed a formal claim for a TDIU, in January 2012. The Veteran's only service-connected disability is his depressive disorder.  The RO should adjudicate this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

However, prior to such adjudication, the Board finds that further development is warranted.

In August 2010, the Veteran underwent a VA examination for his psychiatric disability. The RO also obtained a November 2010 addendum opinion to clarify the Veteran's diagnosis. Subsequently, the Veteran submitted a private medical opinion by a psychologist, dated in June 2013, which suggests a worsening of the Veteran's disability.  Additionally, during the July 2013 Board hearing, the Veteran indicated symptoms suggesting a worsening of his disability since his August 2010 VA examination.  

Under these circumstances, the Board finds that further examination of the Veteran-to obtain clinical findings responsive to the applicable rating criteria, as well as to obtain opinion  as to the impact of the Veteran's depressive disorder on his employability-is warranted. See 38 C.F.R. § 3.327(a) (2013) (examinations will be requested whenever VA determines that there is a need to determine the exact nature or severity of a disability).  See also 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).   
The RO should arrange for the Veteran to undergo a VA mental disorders examination, by an appropriate medical professional, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claim for an increased rating, as well as the claim for a TDIU (which is a claim for increase).  See 38 C.F.R. § 3.655(b) (2013).  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 for the scheduled examination, the RO must obtain and associate with the claims file a copy 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 is complete, the RO should undertake appropriate action to ensure that all outstanding, pertinent records are associated with the claims file. 

As regards VA records, the Veteran's Virtual VA file currently includes outpatient treatment records from the Jesse Brown VA Medical Center (VAMC), from October 1998 to May 2012. More recent records from this facility likely exist.   The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992)  Hence, the RO should obtain from the Jesse Brown VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated from May 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining 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).  The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding, pertinent private medical records, to include from. Dr. D.P. Smith, Ph.D., as well as employment records.

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 (2013).

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 (2013). 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 remaining on appeal.  

The RO's adjudication of the claim for higher rating should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), is appropriate.  Moreover, in adjudicating the claim for a TDIU due to depressive disorder, if the percentage requirements for award of a schedular TDIU, pursuant to 38 C.F.R. § 4.16(a) are not met, the RO should consider whether the procedures for award of an extra-schedular TDIU, pursuant to 38 C.F.R. § 4.16(b), are invoked.
 
Accordingly, these matters are hereby REMANDED for the following actions:

1. Obtain from the Jesse Brown VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, dated since May 2012. . Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file.

2. Send to the Veteran and his agent a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the appeal that is not currently of record.  Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records, to include from Dr. D. P. Smith, Ph.D, and employment records.. 

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim(s) within the one-year period). 

3.  If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should 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 a mental disorders examination by a VA psychiatrist or psychologist (or a psychiatrist or psychologist contracted by VA). 

The entire claims file, to include a complete copy of the REMAND, and copies of all relevant Virtual VA records, 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 necessary tests and studies (to include psychological testing, if warranted) should be accomplished (with all findings made available to the 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 and/or homicidal ideation; and delusions and/or hallucinations. 

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 depressive disorder, and an explanation of what the score means.

The examiner should also address whether the record reflects any change(s) in the severity of the Veteran's depressive disorder at any point since the May 2010 date of the claim for an increased rating for this disability, and, if so, the approximate date(s) of any such change(s).

The examiner should also render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected depressive disorder renders him unable to obtain or retain substantially gainful employment. If so, the examiner should indicate the approximate date upon which the Veteran's depressive disorder rendered him unemployable.

The examiner should set forth all examination findings, along with the 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, the RO should adjudicate the claim for higher rating and for a TDIU on appeal.

If the Veteran fails, without good cause, to report to the examination, in adjudicating the claims, apply the provisions of 38 C.F.R. § 3.655(b).
 
Otherwise, adjudicate each claim in light of pertinent evidence (to particularly include all evidence added to the claims file since the RO's last adjudication of the claims) and legal authority (to include, with respect to the rating claim, whether staged rating, pursuant to Hart, is warranted; and, with respect to the TDIU claim, the provisions of 38 C.F.R. § 4.16(b), as appropriate. 

8.  If any benefit sought on appeal remains denied,  furnish to the Veteran and his agent an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with reasons and bases for all determinations, and afford him 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


Department of Veterans Affairs