Citation Nr: 21077129 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-31 269 DATE: December 28, 2021 ISSUE Entitlement to a disability rating in excess of 50 percent for service-connected anxiety and depressive disorders, not otherwise specified (NOS) (now claimed as posttraumatic stress disorder (PTSD)) (hereinafter "psychiatric disorder"). REMANDED Entitlement to a disability rating in excess of 50 percent for a psychiatric disorder disability is remanded. REASONS FOR REMAND The Veteran served in the Army from July 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veteran's Affairs (VA) Regional Office. The Board finds that a brief procedural history of this case may be helpful in understanding the issue on appeal. The Veteran was granted service connection for anxiety disorder, not otherwise specified (NOS), and depressive disorder, NOS, in a November 27, 2007 rating decision. The Veteran was assigned a 30 percent disability rating. In July 2012, the Veteran filed a petition to reopen his claim of service connection for PTSD in a November 2013 rating decision, the RO continued a 30 percent evaluation for anxiety and depressive disorders, NOS (now claimed as PTSD). This current appeal arises from the Veteran's July 2012 claim asserting entitlement to an increased rating for his psychiatric disorder. See July 18, 2012 VA Form 21-4138, Statement in Support of Claim. In a November 2013 rating decision, the Veteran's disability rating for anxiety and depressive disorders, NOS, now claimed as post-traumatic stress disorder (PTSD) was continued as 30 percent disabling. The Veteran filed a Notice of Disagreement (NOD) with this rating decision that same month. See November 27, 2013 NOD, VA Form 21-0958. Following the issuance of a March 2015 Statement of the Case (SOC), the Veteran perfected his appeal on April 24, 2015. See April 24, 2015, VA Form 9. In an April 2018 decision, the Board, in relevant part, remanded the Veteran's claim of entitlement to an increased disability rating in excess of 30 percent for a psychiatric disorder for the purpose of obtaining a psychiatric examination to ascertain the current severity of the Veteran's disability. In a February 2020 decision, the Board granted a 50 percent disability rating for the Veteran's psychiatric disability. The Board's decision was implemented in a July 6, 2020 rating decision. Legacy Procedures Versus AMA Procedures The Board notes that subsequent to the issuance of the July 6, 2020 rating decision implementing the Board's grant of a 50 percent disability rating, the Veteran filed an October 2020, VA Form 10182 Notice of Disagreement (NOD), selecting the Evidence Docket. See October 14, 2020 VA Form 10182. This form of a notice of disagreement falls within the modernized system of appeals, known as the AMA. The AMA modernized review system applies to all claims for which VA issues a notice of an initial decision on or after the February 19, 2019 effective date of the modernized review system. The AMA may also apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A claimant with a legacy claim may elect to participate in the AMA modernized review system in one of two ways: First, a claimant with a legacy claim could elect to opt-in to the modernized review system on or after November 1, 2017 as part of the rapid appeals modernization program (RAMP) pursuant to section 4 of Public Law 115-55. Second, a claimant with a legacy claim may elect to opt-in to the AMA modernized review system following issuance, on or after the effective date of the AMA, of a VA Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). 38 C.F.R. §§ 3.2400, 3.2500, 19.2. If a claimant with a legacy claim does not elect to participate in the AMA modernized review system by one of the methods described above, his or her claim remains in the legacy system. Here, the Veteran did not elect to participate in the modernized review system pursuant to 38 C.F.R. §§ 3.2400 and 19.2; the filing of a Form 10182 alone is insufficient given the other procedural characteristics of this appeal. If the claimant wishes to appeal an initial decision that was issued by the RO under the legacy system, the Veteran must initiate the appeal by filing a Notice of Disagreement (NOD). The appeal must also be perfected to the Board with the filing of a Substantive Appeal. Only then does the Board have jurisdiction over a legacy appeal. 38 C.F.R. §§ 3.2400, 19.2. In this case, as outlined above, the initial rating decision for this Veteran with regards to his claim to reopen his service connection claim for PTSD (construed as an increased rating claim) was issued on November 2013; and the Veteran was notified of this decision in a notification letter dated November 14, 2013, before the AMA effective date of February 19, 2019. Thus, the November 2013 rating decision is based on a legacy claim, and the Veteran filed a notice of disagreement within the legacy system for that denial. That appeal has been continuously pursued since that legacy NOD and remains the basis for the appeal stream at hand. As noted above, the Veteran did not elect to participate in the modernized review system pursuant to 38 C.F.R. §§ 3.2400 and 19.2. Thus, while the Board does not have jurisdiction of this appeal under the AMA modernized review system, the Veteran's claim remains in the legacy system. As such, the Board finds that the Veteran is not prejudiced by having the appeal remain in the legacy system. Continuing with a brief procedural history of this case: In a June 2021 Memorandum Decision, the United States Court of Appeals for Veterans' Claims (Court or CAVC) vacated and remanded the Board's February 2020 decision which granted the Veteran a 50 percent rating for his psychiatric disability for the purpose of readjudication in accordance with the Order. See June 30, 2021 Memorandum Decision. The Court specifically found that the Board provided an inadequate statement of reasons and basis with respect to the severity, frequency and duration of certain psychiatric symptoms, namely memory impairment, hallucinations and impulse control (such as unprovoked irritability with periods of violence). See June 30, 2021 Memorandum Decision, pgs., 7-8. As will be explained in detail below, the Board is remanding this claim to the RO for further development, to include a VA examination. Entitlement to a disability rating in excess of 50 percent for a psychiatric disorder is remanded. As referenced in the introduction of this decision, in its June 2021 Memorandum decision, the Court found that the Board provided an inadequate statement of reasons and basis with respect to severity, frequency and duration of certain psychiatric symptoms displayed by the Veteran during the course of this appeal, namely his memory impairment, hallucinations and poor impulse control (such as unprovoked irritability with periods of violence). See June 30, 2021 Memorandum Decision, pgs., 7-8. The Board notes that the Veteran was last afforded a VA examination in May 2019 to assess the severity of the Veteran's psychiatric disorder. In that May 2019 examination, the Veteran was diagnosed with an unspecified depressive disorder. The May 2019 examiner determined that the Veteran's overall psychiatric disability picture was best summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress or symptoms controlled by medication. The Veteran's psychiatric symptoms were manifest by depressed mood and anxiety. See May 29, 2019 Mental Disorders Examination, pgs. 1, 3 & 7. Addressing the Veteran's mental status, the VA examiner reported that the Veteran's thought process was logical and oriented in all spheres. The Veteran's affect and mood were described as appropriate. The Veteran denied suicidal ideations or intentions. Id. at pg. 7. Regarding behavioral observations, the examiner reported that the Veteran was dressed in casual clothing, grooming and hygiene were appropriate. The Veteran was cooperative throughout the evaluation. Id. The Board is also cognizant that in his November 2013 Notice of Disagreement (NOD), the Veteran stated that he has nightmares once or twice a week. Further, the Veteran has stated that he has attacked his wife in his sleep. The Veteran has stated that that he forgets his thoughts and finds himself talking in circles at times. The Veteran stated "I get angry with others when asked questions. I start off talking about one thing and before the end of a sentence I am talking about something else." See November 27, 2013 Notice of Disagreement (NOD). In the instant case, the Board observes that the Veteran has presented argument indicating that his psychiatric disorder has worsened since his last May 2019 Mental Disorders examination with respect to memory loss and/or gross impairment in thought process. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Based on a critical reexamination of the evidence of record, with consideration of argument presented by the Veteran, the Board finds that (a) in order to fully address the issues raised in the Court's June 2021 Memorandum decision with respect to the severity, frequency and duration of this Veteran's psychiatric symptoms, and (b) to assist the Veteran in substantiating his claim for a higher rating for his psychiatric disorder, a remand for VA examination is warranted to evaluate the current level of symptomology of this Veteran's psychiatric disorder. Accordingly, this matter is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain all outstanding VA and/or private treatment records where the Veteran has been treated since May 2019 and obtain all necessary authorizations. 2. Then, schedule the Veteran for a psychiatric examination in order to determine the severity of his service-connected psychiatric disorder. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms, e.g., memory impairment, hallucinations, impulse control, such as unprovoked irritability with periods of violence. The examiner should opine as to the levels of social and occupational impairment due to his psychiatric disorder and should describe the frequency and severity of symptoms resulting in those levels of impairment. The examiner should indicate the impairment that results from the Veteran's psychiatric disorder in terms of occupational functioning and daily activities. 3. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal, taking into consideration all applicable rating criteria. If the benefits sought are not fully granted, furnish the Veteran and his representative a supplemental statement of the case (SSOC), before the appeal is returned to the Board, if otherwise in order. 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. §§ 5109B, 7112. JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.