Citation Nr: 1641280 Decision Date: 10/21/16 Archive Date: 11/08/16 DOCKET NO. 11-09 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for hepatitis C associated with aplastic anemia. 2. Entitlement to an increased rating in excess of 30 percent for chronic adjustment disorder with anxious mood associated with aplastic anemia prior to June 19, 2015, and a rating in excess of 50 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to February 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The matters have since been transferred to the RO in St. Petersburg, Florida. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in November 2014. A transcript of this proceeding is associated with the claims file. These matters were previously before the Board in February 2015, when it granted entitlement to an effective date of December 19, 2006, for an increased rating of 30 percent for chronic adjustment disorder, and remanded the instant claims for additional development. In July 2015, during the pendency of the appeal, the RO increased the evaluation for the Veteran's chronic adjustment disorder from 30 to 50 percent, effective June 19, 2015. As the grant of a 50 percent rating, effective June 19, 2015, does not constitute a full grant of the benefit sought, the issue of entitlement to an increased rating for chronic adjustment disorder remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Following the Board's February 2015 order, the Veteran filed a VA Form 9 later the same month, in which he appeared to express a desire to appeal a rating reduction from 100 to 30 percent and requested a Board hearing in Washington, D.C. The Board notes that in an April 1991 rating decision, the RO reduced his evaluation for aplastic anemia from 100 percent to 30 percent. The Board observes that aside from the instant claims, as of February 2015, there do not appear to be any outstanding appeals. The issue that was potentially raised in the February 2015 VA Form 9 has not been addressed by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Before a decision can be reached on the Veteran's claims, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA must make reasonable efforts to help a claimant obtain relevant records that may substantiate a claim, including those from VA and private medical providers. See 38 U.S.C.A. § 5103A(b)-(c); 38 C.F.R. § 3.159(c). In a November 2015 statement, the Veteran indicated that he checked himself into a hospital for suicidal ideations in 2009, and that in 2015, he checked himself into a VA facility, identified as "Gulf Oaks," because he was having the same thoughts again. With respect to the 2015 hospitalization, the Veteran noted that VA can find medical records for Gulf Oaks in his file. Along with his statement, the Veteran submitted a September 2009 medical certificate and other paperwork that appears to be related to the 2009 hospitalization. The medical certificate notes that the Veteran was having suicidal thoughts, and it includes a diagnosis of major depression with psychosis. The Board also observes that as set forth in a May 2014 VA mental health note and July 2014 VA primary care note, the Veteran reported inpatient hospitalization at "Gulf Coast" or "OSH Gulf Port" due to suicidal ideations in or around April 2014. Based on a review of the medical evidence of record, and the Veteran's November 2015 statement, it appears that there are outstanding treatment records that may be relevant to the Veteran's claim for an increased rating for chronic adjustment disorder. There are no treatment records in the claims file documenting the reported inpatient psychiatric treatment(s) in 2014 or 2015, nor are there treatment records from the Gulf Coast VAMC or a similarly-named private facility. Additionally, while the record contains VA treatment records dated March 2007 and earlier, as well as from February 2013 to July 2015, there are no VA treatment records for the period from March 2007 to February 2013, to include those pertaining to the September 2009 hospitalization. As these records appear to be relevant to the Veteran's claim, the AOJ must attempt to obtain them on remand. See 38 U.S.C.A. § 5103A(b)-(c); 38 C.F.R. § 3.159(c)(1)-(2); see also Bell v. Derwinski, 2 Vet. App. 611, 612 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). A remand is also necessary to attempt to obtain records in the custody of the Social Security Administration (SSA). A May 2014 VA mental health note indicates that the Veteran was supporting himself though Social Security and VA benefits. In the case of federal records, VA's duty to assist requires it to make as many requests as necessary to secure relevant federal records. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). Because the record indicates that the Veteran may receive Social Security disability benefits for an unspecified disability or disabilities, there may be outstanding federal records that are relevant to the Veteran's claims. Accordingly, a remand is necessary to obtain and associate with the Veteran's claims file any SSA decisions awarding or denying benefits to the Veteran, in addition to the records upon which SSA based any decision. Additional medical opinions regarding the Veteran's disabilities are also warranted on remand. In February 2015, the Board remanded the Veteran's claims to obtain VA examinations to determine the current severity of his disabilities. The Veteran was afforded a VA mental disorders examination in June 2015. The examiner indicated that the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner also opined that the severity of the Veteran's chronic mood disorder appeared to have worsened since the January 2008 examination, and noted that the Veteran has developed significant pain of unknown origin, which has led to spending more time in bed. Spending more time in bed has reminded him of in-service hospitalization, which the examiner stated appears to have increased his anxiety and depression. However, the examiner did not assign a Global Assessment of Functioning (GAF) score as requested by the Board, and the examination report does not clearly address the specific effects of the Veteran's chronic adjustment disorder on his psychological, social, and occupational functioning. As such, an addendum report is warranted on remand. See 38 C.F.R. § 3.159(c)(4); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-V), and VA has issued a rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. GAF scores are not used in the DSM-V. However, the amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board. These issues were originally certified to the Board in 2011. As the DSM-IV is applicable to the present appeal, it is appropriate to consider GAF scores as a factor in assessing the severity of the Veteran's psychiatric disorder. With respect to the Veteran's claim for an increased rating for hepatitis C, at the November 2014 hearing, the Veteran testified that he has experienced fluctuation in weight due to hepatitis C; specifically, the Veteran asserted that his weight has ranged from approximately 130 to 155 pounds, and that within a period of a month or two, he sometimes loses between 10 and 15 pounds. A review of the Veteran's treatment records show some weight fluctuations. For instance, the Veteran lost approximately 6 pounds between December 2013 and January 2014, and approximately 9 pounds between May and July 2014; he then gained approximately 10 pounds between July 2014 and November 2014. The Veteran was afforded a VA liver examination in June 2015. The examiner noted that the signs and symptoms attributable to the Veteran's hepatitis C included daily fatigue and malaise; however, it is unclear whether the examiner considered the Veteran's contentions regarding fluctuating weight/weight loss. Given the Veteran's contentions and the VA treatment records showing weight fluctuations, a supplemental medical opinion is warranted on remand. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. In particular, obtain all outstanding VA treatment records from the New Orleans and Gulf Coast VAMCs, to include those dated from March 2007 to February 2013, and any outstanding records dated after July 2015. Ask the Veteran to submit, or to complete a release for the VA to obtain on his behalf, private treatment records pertaining to inpatient psychiatric treatment, to include records from "Gulf Oaks, "Gulf Coast," or "Gulf Port." Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Perform an SSA inquiry to determine whether there are any records that exist but have not yet been associated with the claims file, to include any administrative decision(s) on any application for SSA disability benefits and all underlying medical records in SSA's possession. If the search for such records yields negative results, the claims file must be properly documented as to the unavailability of these records. Associate all SSA inquiries, records requests, and responses received with the claims file. 3. After completing the development requested in numbers (1) and (2) above, return the claims file to the VA examiner who conducted the Veteran's June 2015 VA mental disorders examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims file and the Remand have been reviewed. If the same examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinions. After reviewing the record, the examiner should: (a) address whether the June 2015 examination findings under the DSM-V regarding the current nature and severity of the Veteran's PTSD are materially different than findings that would have been made under the DSM-IV and, if so, discuss any differences. (b) assign a current GAF score for the Veteran pursuant to the DSM-IV. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 4. After completing the development requested in numbers (1) and (2) above, obtain a supplemental medical opinion from the examiner who conducted the June 2015 VA liver examination. If this examiner is not available, obtain a medical opinion from an appropriate examiner who is qualified to offer an opinion regarding the severity of the Veteran's hepatitis C. The claims folder, including a copy of this remand, must be made available to, and be reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should respond to the following inquiries, and all findings should be set forth in detail: a. The examiner should indicate whether the medical evidence of record indicates weight loss due to hepatitis C. b. If so, the examiner should provide an opinion as to whether such weight loss is minor or substantial (or otherwise provides an indication of malnutrition). A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 5. After completing the above development and any other action deemed necessary, re-adjudicate the Veteran's claims. If any of the benefits sought are not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case after affording the requisite time period to respond. The matters should then be returned to the Board for appropriate appellate review, if otherwise in order. The Veteran 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 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).