Citation Nr: 18142287 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-22 715 DATE: October 15, 2018 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial evaluation in excess of 30 percent for service-connected unspecified depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1958 to November 1960, February 1961 to March 1964, March 1965 to April 1981, and February 1991 to April 1991. He also had additional service of an unverified nature in the United States Army Reserves. He has been awarded a Combat Infantryman Badge and a Purple Heart Medal. Because of the complex and intertwined nature of the procedural history of the issues on appeal, the Board concludes that a brief recitation of pertinent facts would be helpful. In May 2012, the Veteran filed many claims seeking various VA disability benefits, to include a claim seeking to establish service connection for PTSD. This claim, among others, was denied by the Agency of Original Jurisdiction (AOJ) in a July 2013 rating decision. In August 2013, the Veteran submitted additional evidence in support of these claims and requested that the AOJ reconsider the determinations made in the July 2013 rating decision. In response, the AOJ undertook additional development and readjudicated the Veteran’s claims in an August 2014 rating decision. Later that month, as before, the Veteran submitted additional evidence in support of his claims and requested the AOJ to reconsider the dispositions of the August 2014 rating decision. Again, the AOJ completed additional development and readjudicated the Veteran’s claims in an October 2015 rating decision. Rather than requesting AOJ reconsideration for a third time, the Veteran filed a timely notice of disagreement with the AOJ’s October 2015 rating decision, thereby initiating an appeal with respect to several issues, to include entitlement to service connection for PTSD. In June 2016, the Veteran was provided a Statement of the Case (SOC) readjudicating all of Veteran’s claims denied in the October 2015 rating decision, except for his PTSD claim. This SOC was accompanied by the June 2016 DRO decision, wherein the AOJ recharacterized the Veteran’s PTSD claim and established service connection for “unspecified depressive disorder[,] also claimed as major depressive disorder and PTSD;” a 30 percent initial evaluation was assigned, effective from August 8, 2013. A note in the Codesheet section of this DRO decision reflects that this allowance represented a “Total [g]rant for the issue of [entitlement to service connection for an] acquired psychiatric disability;” however, while the Board notes that the Veteran’s initial PTSD claim was recharacterized by the AOJ, the specific disability did not appear in the lists of disabilities for which service connection had been previously granted and denied – leaving the final disposition of the Veteran’s original PTSD claim ambiguous. Later in June 2016, the Veteran perfected an appeal to the Board regarding the issues readjudicated in the June 2016 SOC by filing a timely substantive appeal. As of this writing, development of these issues by the AOJ remains ongoing and certification to the Board has not been completed. As such, these issues are not under the Board’s jurisdiction at this time. In September 2016, the Veteran expressed disagreement with the assigned initial evaluation and effective date for unspecified depressive disorder, claimed as major depressive disorder and PTSD, which began a separate appeal stream for these two downstream issues. One of these downstream issues was readjudicated by the AOJ in an April 2017 SOC, which continued to deny the benefits sought. The Veteran later perfected an appeal to the Board regarding this issue, and it was certified to the Board by the AOJ in May 2018. In an April 2018 DRO decision, the AOJ readjudicated the second downstream issue, granting an effective date of May 1, 2012, for the grant of service connection for unspecified depressive disorder, claimed as major depressive disorder and PTSD. As noted by the AOJ, this was the effective date sought by the Veteran in statements in support of his appeal of this issue, and thus, this allowance represented a full grant of the benefits sought and abrogated the appeal. As such, this issue is no longer in appellate jurisdiction. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In October 2018, the AOJ readjudicated the issues from the Veteran’s initial appeal stream which have not been certified to the Board. Interestingly, while the Codesheet section of the October 2018 DRO decision does not include PTSD in the lists of disabilities for which service connection was previously granted or denied, the issue of entitlement to service connection for PTSD is included in the October 2018 Supplemental Statement of the Case (SSOC), wherein the previous denial is continued. The inclusion of this issue in the October 2018 SSOC resolves the ambiguity of the AOJ’s disposition of this issue in the June 2016 DRO decision and SOC, making it clear that the Veteran’s claim to establish service connection for PTSD remains separate from the psychiatric issue granted in the June 2016 DRO decision. As will be further discussed below, this issue is under the Board’s jurisdiction for the limited purpose of correcting a procedural defect. 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. As recounted in detail in the Introduction, the Veteran has initiated an appeal with the AOJ’s denial of this issue by filing a timely notice of disagreement in October 2015. However, while this issue was readjudicated in the October 2018 SSOC, a remand is necessary for issuance of an SOC pursuant to 38 C.F.R. § 19.26. As specifically stated in 38 C.F.R. § 19.31, in no case will a SSOC be used to respond to a notice of disagreement on newly appealed issues that were not addressed in a SOC. When such occurs, the Board must remand the case for issuance of a SOC. 38 C.F.R. § 19.9; Manlincon v. West, 12 Vet. App. 238, 240 (1999). The Board notes that this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). 2. Entitlement to an initial evaluation in excess of 30 percent for service-connected unspecified depressive disorder is remanded. While the record includes several recent VA opinions concerning the nature and etiology of the Veteran’s various acquired psychiatric disabilities, he was most recently provided a VA examination to determine the frequency and severity of the manifestations of these disabilities in August 2015 – more than 3 years ago. Subsequent evidence, including VA treatment records and statements from the Veteran, reflect that the symptoms associated with his service-connected unspecified depressive disorder have increased in severity since August 2015. As such, a remand for a contemporaneous VA psychiatric examination is necessary. So that the examiner has the benefit of the Veteran’s current and complete disability picture, updated VA and private treatment records pertinent to this issue must be obtained and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must issue a Statement of the case addressing the issue of entitlement to service connection for PTSD. Manlincon, 12 Vet. App. 238. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. The Veteran and his representative should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to these issues is perfected within the applicable time period should such return to the Board for appellate review. 2. The AOJ must obtain and associate with the file all updated records of VA treatment from the VAMC in San Juan, the Commonwealth of Puerto Rico, and all associated facilities dated after September 27, 2018. 3. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to his psychiatric disabilities. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected unspecified depressive disorder. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary studies and tests should be conducted. The examiner(s) must describe the frequency and severity of the manifestations of the Veteran’s service-connected unspecified depressive disorder. In addition to the above, to the extent possible, the examiner is requested to differentiate between the symptoms attributable to the Veteran’s unspecified depressive disorder, as opposed to any other psychiatric disability which may be present. If the examiner(s) cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner(s) shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. After undertaking any additional development deemed appropriate, and giving the Veteran and his representative a full opportunity to supplement the record, readjudicate the Veteran's pending issue in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the   applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel