Citation Nr: 1806300 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 06-30 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for major depressive disorder. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran had active service in the Army from September 1975 to February 1978. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2011 and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that (respectively) awarded service connection for major depressive disorder and denied SMC based on the need for aid and attendance or housebound status. These issues were before the Board in October 2015 and June 2017 when they were remanded for additional development. The Veteran testified before the undersigned Veterans Law Judge in a travel Board hearing at the RO in November 2017. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND Major Depressive Disorder During the November 2017 Board hearing, the Veteran reported that he had an upcoming appointment with his VA primary care provider in December 2017, to address his psychiatric disability and need for assistance. 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). Therefore, remand is required to obtain the outstanding record. In addition, the Veteran's last VA examination for major depressive disorder was conducted in July 2013. However, since that time, the Veteran has stated that he believes his symptoms have progressed. See November 2017 hearing transcript. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95; Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand, the Veteran should be afforded a new VA examination to assess the current severity of his service-connected psychiatric symptoms. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). SMC As the increased rating issue being remanded is inextricably intertwined with the issue of entitlement to SMC, it must be adjudicated prior to further consideration of the SMC issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. A specific search should be conducted for all pertinent, outstanding VA medical records. In particular, a search should be made for VA primary care records dated from December 2017 to the present. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected major depressive disorder. The claims file should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. All indicated studies should be performed. All symptoms should be reported and any functional impairment noted. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, to include whether examinations regarding entitlement to SMC based on the need for aid and attendance or housebound status is warranted, the claims must be readjudicated. If any claim is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).