Citation Nr: 1512382	
Decision Date: 03/24/15    Archive Date: 04/01/15

DOCKET NO.  12-17 874	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to an initial compensable disability rating for allergic rhinitis. 

2.  Entitlement to service connection for residuals of an abdominal muscle injury. 

3.  Entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with anxiety and depression. 


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Carole Kammel, Counsel


INTRODUCTION

The Veteran had active military service from January to May 2002.  He had service in the Army National Guard from January 2004 to March 2005 and from June 2008 to July 2009. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating action of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey.  By this rating action, the RO, in part, granted service connection for adjustment disorder with anxiety and depression and allergic rhinitis; initial noncompensable disability ratings were assigned, effective July 28, 2009--the date after the Veteran was discharged from the Army National Guard.  The RO also denied service connection for residuals of an abdominal injury.  The Veteran appealed this rating action to the Board.  

By a May 2012 rating action, the RO assigned an initial 10 percent disability rating to the service-connected adjustment disorder with anxiety and depression, effective July 28, 2009.  Because the increase in the evaluation of the above-cited service-connected disability does not represent the maximum rating available, the initial evaluation claim remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).  As such, the Board has framed the initial evaluation issue on appeal as reflected on the title page.  See, too, Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

In April 2013, the Veteran testified before the undersigned during a video conference conducted via the above RO.  A copy of the hearing transcript has been uploaded to the Veteran's Virtual VA electronic claims file.  At the hearing, the Veteran submitted additional evidence (internet articles addressing the death of two service comrades) along with a waiver of initial RO consideration.  Thus, a remand to have the RO initially consider this evidence in a supplemental statement of the case is not required.  38 C.F.R. § 20.1304 (2014).  A remand is required, however, on the issue of entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with depression and anxiety for reasons that are outlined below.  

The issue of entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with depression and anxiety is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if additional action is required on his part.


FINDING OF FACT

During an April 2013 hearing before the undersigned, the Veteran withdrew his claims of entitlement to an initial compensable disability rating for allergic rhinitis and entitlement to service connection for residuals of an abdominal muscle injury. 


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal regarding the claim of entitlement to an initial compensable disability rating for allergic rhinitis have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2014).

2.  The criteria for withdrawal of a Substantive Appeal regarding the claim for service connection for residuals of an abdominal muscle injury have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2014).



REASONS AND BASES FOR FINDING AND CONCLUSIONS


Withdrawal of Appeal-Initial Rating (Allergic Rhinitis) and Service Connection (Abdominal Muscle Injury)

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

During an April 2013 hearing before the undersigned, the Veteran withdrew his claims of entitlement to an initial compensable disability rating for allergic rhinitis and entitlement to service connection for residuals of an abdominal muscle injury.  (Transcript (T.) at page (pg.) 3)).  Thus, no allegations of errors of fact or law remain for appellate consideration with respect to these claims.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claims and they are dismissed.


ORDER

The claim of entitlement to an initial compensable disability rating for allergic rhinitis is dismissed. 

The claim for service connection for residuals of an abdominal muscle injury is dismissed. 



REMAND

For the reasons expressed below, the Board finds that the claim of entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with anxiety and depression must be remanded for further development. 

The Veteran contends that his service-connected adjustment disorder with anxiety and depression is more disabling than the currently assigned 10 percent rating reflects due to such symptoms as impaired sleep, hypervigilance, depressed mood, tearfulness, weekly flashbacks and nightmares, decreased work efficiency as a police officer and social impairment (i.e., preferred to socialize with co-workers who are also veterans).  (T. at pages (pgs.) 6-7, 9, 13 and August 2014 VA Mental Disorders examination report uploaded to the Veteran's Virtual VA electronic claims file). 

VA examined the Veteran to determine the nature and extent of his adjustment disorder with anxiety and depression in August 2014.  (See August 2014 VA Mental Disorders examination report uploaded to the Veteran's Virtual VA electronic claims file ).  The August 2014 VA examiner noted that the Veteran demonstrated a depressed mood, anxiety and chronic sleep impairment as a result of his service-connected psychiatric disorder, and diagnosed him with chronic adjustment disorder with mixed anxiety and depressed mood.  The VA examiner, however, failed to assign a Global Assessment of Functioning (GAF) score related to the Veteran's service-connected adjustment disorder with depression and anxiety.  The Board recognizes that VA is moving toward use of Diagnostic Statistical Manual (DSM) 5, see 79 Fed Reg. 45093 (Aug 4. 2014), however, the change does not apply to cases that were pending before the Board on August 4, 2014, such as the Veteran's.  Thus, the prior version, DSM-IV, is to be applied to cases, such as the Veteran's, that have been pending before the Board prior to August 4, 2014.  Id at 45094.  VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).  Crucially, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Thus, to ensure that the record reflects the current nature and extent of the service-connected adjustment disorder with depression and anxiety, a contemporaneous examination, with findings responsive to the applicable rating criteria, is needed.  See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a mental disorders examination by an appropriate specialist to determine the extent of his service-connected adjustment disorder with anxiety and depression.  The Veteran's physical claims files, and Veterans Benefits Management System (VBMS) and Virtual VA electronic claims files and copy of this remand, must be made available to the examiner for review in connection with the examination.  All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected adjustment disorder with anxiety and depression. The results of any such testing and studies should be included in the examination report.

The examiner should provide a detailed account of all manifestations of the service-connected adjustment disorder with anxiety and depression found to be present.  In addition, a GAF score must be assigned, along with an explanation of the number assigned to the Veteran.  Also, the examiner should comment on functional effects on daily activities and employment.

A complete rationale should be given for all opinions and conclusions expressed.  If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

2.  Thereafter, the RO should readjudicate the claim of entitlement to an initial disability rating in excess of 10 percent for service-connected adjustment disorder with depression and anxiety, to include consideration of "staged ratings," pursuant to Fenderson v. West, supra.

If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to this issue as well as a summary of the evidence of record.  An appropriate period of time should be allowed for response before the case is returned to the Board.

The Veteran 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 2014).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs