Citation Nr: 18150067 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-05 111 DATE: November 14, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), from February 5, 2010 to July 10, 2011, and in excess of 70 percent, thereafter is remanded. Entitlement to an effective date prior to February 5, 2010, for the award of service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD, is remanded. Whether the Veteran submitted a timely Notice of Disagreement with a May 7, 2010, decision of the Regional Office (RO) that denied his request to reinstate his appeal of December 2006 rating decision is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1983 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision. In June 2018, the Veteran filed an Appeal to Board of Veterans’ Appeals (VA Form 9), perfecting his appeal regarding the issues of a disability rating in excess of 30 percent for residuals of Guillain-Barre Syndrome, ascending polyneuroradiculopathy with the equivalent of Bell’s palsy right side of face, entitlement of an effective date prior to July 11, 2011 for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, and service connection for a right eye disability, campylobacter jejuni, brucellosis, chronic fatigue syndrome, fibromyalgia, migraines, irritable bowel syndrome, and weight loss. At present, these issues have not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the Veteran and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notifications have not been sent in regard to the VA Form 9 filed in June 2018, the Board declines to take any further action on that appeal at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in 38 C.F.R. § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). 1. Entitlement to an initial disability rating in excess of 10 percent for an acquired psychiatric disorder, to include major depressive disorder and PTSD, from February 5, 2010 to July 10, 2011, and in excess of 70 percent, thereafter is remanded. The Veteran’s claim for an increased rating for an acquired psychiatric disorder was pending before the Agency of Original Jurisdiction after August 4, 2014. The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA amended certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). 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. Id. Therefore, because the Veteran’s claim for an increased rating was pending before the Agency of Original Jurisdiction after August 4, 2014, it must be remanded for a new VA Examination that utilizes the DSM-5 rating criteria. Related, the Board finds that a new VA examination is warranted to assess the current nature and severity of the Veteran’s service-connected acquired psychiatric disorder. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). The Veteran was last afforded a VA Initial Posttraumatic Stress Disorder (PTSD) Examination in April 2013. Considering that the Veteran’s last examination occurred more than 5 years ago, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran’s service-connected acquired psychiatric disorder. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability…the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Lastly, as will be discussed below, should an effective date prior to February 5, 2010, be awarded for the Veteran’s service-connected psychiatric disorder, that new period will require the assignment of a disability rating. Therefore, the Veteran’s claim for an increased rating for an acquired psychiatric disorder is inextricably intertwined with the claim for an effective date prior to February 5, 2010, for the award of service connection for that disability. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the issue of an increased rating for an acquired psychiatric disorder must be remanded along with the issue of an effective date prior to February 5, 2010, concerning the same service-connected disability. 2. Entitlement to an effective date prior to February 5, 2010, for the award of service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD, is remanded. 3. Whether the Veteran submitted a timely Notice of Disagreement with a May 7, 2010, decision of the RO that denied his request to reinstate his appeal of December 2006 rating decision is remanded. By way of history, the Veteran sought service connection for PTSD, which was denied in a December 2006 rating decision. The Veteran perfected an appeal. However, in a February 2010 Statement in Support of Claim (VA Form 21-4138) he withdrew his appeal. The Veteran then sought to reinstate his appeal. A May 7, 2010 letter from the Agency of Original Jurisdiction notified the Veteran that his appeal had been withdrawn and could not be reinstated. (The Veteran was not notified of his appellate rights, as was directed in an April 22, 2010 deferred rating decision.) In May 2012, the Veteran’s attorney submitted a Notice of Disagreement (NOD) concerning the May 2010 decision advising him that his appeal had been withdrawn and could not be reinstated. In a December 18, 2014 letter, the Agency of Original Jurisdiction found that the May 2012 NOD was not timely. The Agency of Original Jurisdiction notified the Veteran of his appellate rights. In December 2015, the Veteran submitted a timely NOD regarding the December 2014 decision that found that his May 2012 NOD was not timely. Therefore, the Agency of Original Jurisdiction must provide the Veteran with a Statement of the Case (SOC) concerning the issue of whether the May 2012 statement from the Veteran’s attorney is a timely NOD in regard to the May 2010 letter that denied his request to reinstate his appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). The issue of an effective date prior to February 5, 2010, for the award of service connection for an acquired psychiatric disorder is inextricably intertwined with the issue of whether the May 2012 NOD is timely. See 38 C.F.R. § 4.16(a); Harris, 1 Vet. App. at 183. As such, the issue of an effective date prior to February 5, 2010, for the award of service connection for an acquired psychiatric disorder must be remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2017 to the present. 2. Provide the Veteran and his attorney with a Statement of the Case (SOC) concerning whether the Veteran submitted a timely Notice of Disagreement (see Statement from attorney received on May 4, 2012) with a May 7, 2010, decision of the RO that denied his request to reinstate his appeal of December 2006 rating decision. 3. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected acquired psychiatric disorder, to include major depressive disorder and PTSD. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. (c.) To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to acquired psychiatric disorder, to include major depressive disorder and PTSD alone. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel