Citation Nr: 18140956 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-25 655 DATE: October 9, 2018 REMANDED Service connection for varicose veins of the right lower extremity is remanded. An initial disability rating in excess of 50 percent for unspecified depressive disorder claimed as memory loss prior to October 29, 2015, and in excess of 30 percent therefrom, is remanded. An effective date prior to February 27, 2012, for the award of service connection for varicose veins of the left lower extremity, is remanded.   REASONS FOR REMAND The Veteran had active service from September 1976 to September 1996. This matter is on appeal from a December 2012 rating decision. A November 2015 rating decision decreased the disability rating for unspecified depressive disorder claimed as memory loss (previously posttraumatic stress disorder (PTSD)) from 50 percent to 30 percent effective from October 29, 2015. As there was no reduction in the Veteran’s overall disability rating as a result of that reduction, the steps for reducing an evaluation set forth in 38 C.F.R. § 3.105(e) were not followed. See VAOPGCPREC 71-91. 1. Service connection for varicose veins or the right lower extremity. In an August 2012 VA Form 21-4142, Authorization and Consent to Release Information to the Department of Vetens Affairs (VA), the Veteran identified relevant private treatment records at Atlanta Vascular Specialists with Dr. Wellons. The claims file currently includes a December 2011 letter from Dr. Wellons, which the RO cited in support of its denial. However, the December 2011 letter clearly shows, consistent with the Veteran’s August 2012 release for these records, that he underwent an evaluation and work-up by Dr. Wellons. Those records were not obtained. A remand is warranted to allow VA to obtain (updated) authorization and request these records. Updated VA treatment records should also be obtained in light of the remand. 2. An initial disability rating in excess of 50 percent for unspecified depressive disorder claimed as memory loss prior to October 29, 2015, and in excess of 30 percent therefrom. This issue is remanded for a new VA examination. At the outset, the Board observes that this issue now includes an earlier period of appellate review. This results from a January 2016 RO rating decision, which granted an earlier effective date from January 8, 2010, for the award of service connection for unspecified depressive disorder claimed as memory loss (previously diagnosed as PTSD). In response to the January 2016 rating decision, the Veteran submitted a statement later in January 2016, which he labeled as a “Notice of Disagreement.” In that statement, he wrote that he would like to “disagree and appeal the decision.” In the body of the statement, he indicated why he felt a higher rating was warranted. The Veteran’s January 2016 statement did not initiate appellate review of the January 2016 rating decision as it was not filed on a VA Form 21-0958, Notice of Disagreement (NOD). Nonetheless, to the extent he was disagreeing with the initial rating assigned, that essential issue was already on appeal by that time. Therefore, the Veteran’s disagreement with the earlier, initial disability rating assigned in the January 2016 rating decision is subsumed into the instant appeal. To this extent, the Veteran last underwent a VA examination for this disability in October 2015. In a January 2016 statement, the Veteran cast doubt on the accuracy of this examination. He identified several perceived deficiencies, including that he had been coached at the examination on the memory questions; he had taken no medications, contrary to the examiner’s notation; and he was not given the opportunity to express his mood swings, obsessional rituals, difficulty in adapting to stressful situations, and needing to take time off from work. He also felt that he was not evaluated properly based on his current condition, especially as it pertained to his inability to maintain a relationship with three failed marriages, which were not mentioned “at all.” The October 2015 VA examination report does not bear out all of the Veteran’s concerns as it does mention that he was married to his fourth wife; was “easy going,” but had “moments of irritability”; and had memory complaints. It also included an extensive list of his self-reported complaints. However, it does not mention some of his other concerns, such as needing to take time off from work. Furthermore, it noted a “[p]ersistent irritability due to possible problematic personality traits or a somatic disorder; however, further examination is indicated for rule outs [sic].” (Emphasis added.) To this extent, it must be clear that an examiner has indeed considered “all procurable and assembled data,” by obtaining all tests and records that might reasonably illuminate the medical analysis. When the record leaves this issue in doubt, it is the Board’s duty to remand for further development. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Accordingly, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his psychiatric disability. 3. An effective date prior to February 27, 2012, for the award of service connection for varicose veins of the left lower extremity. The Veteran submitted a timely NOD in August 2016 with a January 2016 rating decision granting service connection for varicose veins, left lower extremity (claimed as varicose veins) with an evaluation of 10 percent effective February 27, 2012. On the NOD form, the areas of disagreement he marked were service connection, effective date of award, and other—“retro payment.” As service connection has already been granted, it is clear that his disagreement is with the effective date for the award of service connection. At present, a statement of the case (SOC) has not yet been issued. A remand is warranted for the issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any further private treatment records including Atlanta Vascular Specialists - Dr. Wellons. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records. 3. Schedule the Veteran for a VA examination to assess the severity of the service-connected unspecified depressive disorder claimed as memory loss (previously diagnosed as PTSD). 4. If the benefit sought is not granted in full, send the Veteran and his representative an SOC that addresses the issue of an effective date prior to February 27, 2012, for the award of service connection for varicose veins of the left lower extremity. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel