Citation Nr: 1342352 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-08 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for acute promyelocytic leukemia with neutropenia (leukemia). 3. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1991 to May 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2007 and December 2009 rating decisions of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO), which, respectively, denied service connection for depression and leukemia and granted service connection for PTSD, rated 30 percent, effective December 28, 2006. The Board secured an August 2013 VHA medical advisory opinion and an October 2013 clarification of the opinion in the matter of service connection for leukemia. The issues of service connection for leukemia and entitlement to a rating in excess of 30 percent for PTSD are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT A December 2009 rating decision by the Houston, Texas RO granted the Veteran service connection for PTSD to include depressed mood symptomatology; there is no unresolved question of fact or law in the matter of service connection for depression before the Board. CONCLUSION OF LAW The appeal seeking service connection for depression must be dismissed as moot. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002); 38 C.F.R. §§ 4.14, 20.101 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) outlines VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Given the disposition herein, the Board finds that any notice defect or assistance omission in this matter is harmless. [The Board observes that the Social Security Administration (SSA) records sought below could have no bearing on a claim that is being dismissed as moot.] Under 38 U.S.C.A. § 7104, the Board has jurisdiction where there is a question of law or fact necessary to a decision by the Secretary of VA under a law that affects the provision of benefits administered by VA. See 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. As is noted above, the Houston RO has awarded the Veteran service connection for PTSD, to include symptoms of depression. Because the same symptom cannot be compensated twice under separate diagnoses (see 38 C.F.R. § 4.140), and because the Veteran's depression is already being compensated as a symptom of PTSD, there is no question of fact or law regarding the matter of service connection for depression for the Board to consider. Accordingly the appeal in this matter must be dismissed as moot. 38 U.S.C.A. § 7105(d)(5). ORDER The appeal seeking service connection for depression is dismissed. REMAND The Board secured a VHA medical opinion (and clarification) in the matter of service connection for leukemia. This manner of development generally does not require referral to the agency of original jurisdiction for their initial consideration of the opinion(s) received. However, as the issue is being remanded anyway, the RO will have the opportunity to readjudicate the claim in light of the expanded record in the first instance. The Veteran receives SSA disability benefits (as noted in VA treatment record). The copy of the award of such benefits, and copies of the medical records considered in connection with the award are not among the evidence in the record, and there is no indication that such records were sought. As they are constructively of record, and may contain pertinent information (The Board is unable to find that the Veteran would not be prejudiced if these records are not secured), they must be secured. Regarding the rating for PTSD, the Board notes that a December 2009 rating decision granted the Veteran service connection for PTSD and assigned an initial 30 percent rating, effective December 28, 2006. Correspondence from the Veteran received in February 2010 expresses disagreement with the rating, and is reasonably interpreted as a (timely) notice of disagreement with the December 2009 rating decision. The RO has not issued a statement of the case (SOC) in the matter. In such circumstances, the Board is required to remand the matter for issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal after a SOC is issued. Accordingly, the case is REMANDED for the following: 1. The RO should secure from SSA a copy of the Veteran's award of SSA disability benefits and copies of the complete medical records considered in connection with such award. The RO should thereafter arrange for any further development suggested by the records received. If the records are unavailable, the reason for their unavailability must be noted in the record. 2. The RO shall then review (in light of any additional records received from SSA) their determination regarding the rating assigned for PTSD, arrange for any further development indicated, readjudicate the claim, and if the benefit sought remains denied, issue an appropriate SOC in the matter. The Veteran should be advised of the time limit for perfecting his appeal, and afforded the opportunity to do so. If this occurs, this matter should be returned to the Board for appellate review. 3. The RO should also review the expanded record and readjudicate the Veteran's claim of service connection for leukemia, in light of all additional evidence added to the record since their last prior adjudication of the matter. If the claim remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs