Citation Nr: 1716004 Decision Date: 05/11/17 Archive Date: 05/22/17 DOCKET NO. 11-32 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for major depression and dysthymia. ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1995 to October 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran indicated by statement dated March 2015 that he no longer wishes to appear at a Board hearing. The Board deems the Veteran's prior hearing request properly withdrawn. See 38 C.F.R. § 20.704(d). The Board remanded this case in October 2015 at the request of the Veteran for consideration by the Agency of Original Jurisdiction (AOJ) of additional evidence submitted after the October 2011 Statement of the Case. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Initially, the Board notes that it is unclear from the evidence of record whether his major depression and dysthymia are rated under Diagnostic Code (DC) 9433-9434, or DC 8045. In this regard, a January 2014 rating decision, the Veteran was granted entitlement to service connection for traumatic brain injury (TBI) with an evaluation of 70 percent effective November 15, 2011. TBI is rated under 38 C.F.R. § 4.124a, DC 8045. In the January 2014 rating decision the following was noted that during the November 2013 VA examination: his social interaction was noted to be occasionally inappropriate; subjective symptoms that do not interfere with work instrumental activities of daily living or work, family or other close relationships; and one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. However these facets were included in his evaluation for his service-connected major depression and dysthymia, and therefore, were not also included in his TBI evaluation. However, as noted in the September 2016 supplemental statement of the case (SSOC), the November 2013 mental disability examiner assessed that the Veteran's symptoms have increased due to his TBI but are not clearly distinguishable from his TBI symptoms. Because of this, the rating decision dated December 4, 2015 combined his depressive disorder with the TBI evaluation with a total 70 percent evaluation effective November 15, 2011. While the mental exam shows entitlement to a higher evaluation as of the date of the examination, this has been considered when combining your depressive disorder with your TBI evaluation. Thus, while the January 2014 rating decision suggests that all symptomatology attributed to the Veteran's service-connected major depression and dysthymia is rated under DC 9433-9434, the September 2016 SSOC indicates that such symptomatology is being rated under DC 8045. The Board observes that DC 8045 directs to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder. However, when there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Under "Evaluation of Cognitive Impairment and Subjective Symptoms," Note (1) discusses what to do when there is an overlap of manifestations of conditions evaluated under "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" and manifestations of a comorbid mental disorder that can be separately evaluated under another diagnostic code. The Note states that if the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of the overall impaired functioning due to both conditions. Considering the above, the Board finds that a remand is necessary because it is unclear from the evidence of record how the Veteran's service-connected major depression and dysthymia should be rated. The Board notes that the last VA examinations of the Veteran's TBI residuals and mental health disorders were conducted in November 2013. The examiners attributed many of the Veteran's worsening mental health symptoms to a service-connected TBI and were unable to identify distinctly separate manifestations of acquired psychiatric disorders. The examiners noted that the record did not contain any mental health treatment records since the Veteran's separation from the military in 2009. As reflected above, the AOJ most recently rated all of the Veteran's mental health symptoms under the criteria for TBI residuals effective November 15, 2011, the date VA received clarification in writing the Veteran was seeking service-connection for TBI residuals. See September 2016 Supplemental Statement of the Case; November 2011 Statement in Support of Claim. However, neither the VA examiners nor the AOJ reviewed the additional evidence received since the September 2016 SSOC, which includes mental health treatment records from BMC Iwakumi Mental Health Clinic (BMC) suggestive of a worsening mental health condition. For example, a December 2015 outpatient treatment record from BMC shows that the Veteran acknowledged suicidal ideation, stated he has taken some aggression out on his dogs, and was reported to have stated he wanted to hurt his wife. The clinical impression was Rule-Out Major Depressive Disorder, Severe, Recurrent, with Anxious Distress, Severe. A review of the claims file indicates that these records were uploaded on the same day as a statement by the Veteran dated October 10, 2016. In the statement, the Veteran indicated he wished for the AOJ to consider additional evidence before returning the case to the Board for appellate consideration. In light of the above, the Board finds that the AOJ should schedule another VA examination to evaluate the current severity of the Veteran's major depression and dysthymia to determine whether it warrants a higher rating, should be rated separately, or should be rated as part of the service-connected TBI. As noted above, if the manifestations of two or more conditions cannot be clearly separated, the AOJ should assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should contact the Veteran and ask him to identify any outstanding, relevant treatment records to include records from VA facilities and private doctors. The AOJ should assist the Veteran in obtaining any outstanding, relevant treatment records identified. The AOJ should obtain any updated treatment records from identified VA facilities and associate all outstanding records obtained with the evidence of record. Pertinent records written in Japanese and other foreign languages should be translated into English as necessary. 2. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination to determine the severity of all manifestations and residuals associated with his service-connected major depression with dysthymia. The pertinent evidence in the claims file must be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. All appropriate tests and studies should be performed. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations of the Veteran's service-connected psychiatric disorders. The examiner should discuss the functional impact of the Veteran's symptoms on the Veteran's activities and social and occupational functioning. To the extent possible, the examiner should delineate specifically which symptoms are associated with his TBI and which symptoms are associated with acquired psychiatric disorders. If the examiner is unable to delineate, he or she should explain why. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After completing the above, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the manifestations of two or more conditions cannot be clearly separated, the AOJ should assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. The AOJ should consider ratings under all applicable diagnostic codes including 8045 and 9433-9434. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ S. HENEKS 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) (2016).