Citation Nr: 1807032 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 07-25 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for major depression prior to July 12, 2017, and in excess of 70 percent thereafter. 2. Entitlement to a disability rating in excess of 10 percent for lumbar myositis with L2 and L3 vertebral bodies irregularities, minimal posterior concentric bulging discs L2-3 and L4-5, mild depression L2-3 superior endplates towards the right, and mild degenerative changes (low back disability) prior to September 15, 2008, and in excess of 40 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 12, 2017. ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to November 2003, including service in Kuwait, and for an additional two months and 25 days. The Veteran had additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2007 and October 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In a July 2008 decision, the Board denied the Veteran's claim for entitlement to a rating in excess of 10 percent for his lumbar spine disability. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). Additionally, in October 2008, the RO processed a September 2008 communication from the Veteran as a new claim notwithstanding the fact that the Veteran had also appealed the Board's July 2008 decision to the Court; the RO partially granted the Veteran's claim by assigning a 40 percent rating for his lumbar spine disability as of September 15, 2008-the date of the Veteran's new claim. In October 2009, the Secretary of Veterans Affairs and the Veteran, through his attorney, filed a Joint Motion to vacate the Board's July 2008 decision and remand the case for further development. That motion was granted by the Court in October 2009. These issues were last remanded by the Board in May 2016. At that time, the issues were remanded to afford the Veteran a new VA examination of the spine; as it was found to be intertwined with that issue, the Veteran's TDIU claim was also remanded. Further, as the Veteran had submitted a notice of disagreement but no statement of the case was issued, the issue of entitlement to an initial evaluation in excess of 30 percent for major depression was remanded. Thereafter, in October 2017, a rating decision was issued which increased the Veteran's disability rating from 30 percent to 70 percent for major depression effective July 12, 2017. Quizzically, on the same day, a statement of the case was issued in which the Veteran's disability rating was noted to be continued at 30 percent and a supplemental statement of the case was issued which granted a 70 percent disability rating and stated "our previous decision of an evaluation of 70 percent disabling for this condition remains unchanged." A November 1, 2017 letter explained that the Veteran had been granted TDIU and a 70 percent disability rating for major depression, effective July 12, 2017. The Veteran did not provide a VA Form 9 substantive appeal following the receipt of the statement of the case.. However, in November 2017, the Veteran stated his disagreement with the November 1, 2017 decision letter. Given that the Veteran was provided with a rating decision and statement of the case on the same day, it stands to reason that the Veteran meant to appeal the evaluation for major depression. As such, the November 2017 statement is considered an appeal and the issue may now be considered by the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the additional delay, however, remand is necessary to complete additional development. Initially, the Veteran's July 2017 VA examination indicates that the Veteran has attended group therapy from July 2015 to September 2016. The examination further quotes a June 2017 VA medical center treatment note. The Veteran's October 2017 statement of the case additionally notes the review of the Veteran's treatment records from San Juan and Mayaguez VA medical centers up to September 12, 2017. Regrettably, the Veteran's claims file only includes VA medical treatment records up to December 15, 2015. Additional VA records must be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (holding that VA must obtain VA medical records sufficiently identified by the veteran regardless of the records' potential relevance). Of note, the July 2017 VA examination quotes findings in Spanish. Any examination reports, treatment records or other records found must first be translated into English before the appeal is remanded to the Board. As the issues are being remanded, the Board notes that in September 2010, authorization to obtain records from Dr. I.M. was sought. In November 2011, the Veteran stated that he had no additional treatment records to submit. Given that the claims file is being again remanded, the Veteran should be contacted to determine whether he has any additional records to submit in support of his claims. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to any private or VA treatment records for his claimed disabilities that have not been associated with the claims file. A signed release form should be completed for each private treatment provider. Request records from the VA Medical Centers in San Juan and Mayaguez, Puerto Rico for the period since December 2015. If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain the records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Translate all Spanish documents in the claims folder to include any new treatment records associated with the file and statements quoted in the July 2017 VA examination. All Spanish language documents MUST be translated before any claims are returned to the Board. 4. Complete any additional development warranted, then readjudicate the claims on appeal. If any of the benefits sought are not granted in full, issue a supplemental statement of the case to the Veteran before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matters 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). _________________________________________________ M.H. HAWLEY 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) (2017).