Citation Nr: A21020186 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190118-2889 DATE: December 17, 2021 REMANDED Entitlement to an initial disability rating for a gastrointestinal disorder, including duodenal ulcers and irritable bowel syndrome (IBS), in excess of 10 percent disabling prior to August 31, 2016, and in excess of 30 percent disabling thereafter, is remanded. Entitlement to an initial disability rating for acquired psychiatric disorders in excess of 30 percent disabling prior to January 25, 1999; in excess of 50 percent disabling prior to August 18, 2000; and in excess of 70 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from October 1968 to September 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 1977 decision, the Board denied the Veteran's claims for entitlement to service connection for anxiety neurosis and residuals of a duodenal ulcer. However, in November 2015, the Board vacated the October 1977 decision because the record indicated the Veteran's pending hearing request was not addressed before issuing the October 1977 decision. The Board remanded these matters to afford the Veteran an opportunity for a hearing, which the Veteran declined. See January 2016 Correspondence, Veteran's representative. In May 2016, the Board found the Veteran was entitled to service connection for an acquired psychiatric disorder, to include an anxiety disorder (later diagnosed as posttraumatic stress disorder (PTSD)) and associated depression as well as a gastrointestinal disability, to include a duodenal ulcer and IBS. The Veterans Benefits Administration (VBA) implemented the Board's May 2016 decision in an August 2016 rating decision and assigned effective dates of December 22, 1975 for (1) service connection for PTSD with anxiety disorder and depression and (2) a gastrointestinal disorder, including duodenal ulcers and IBS. VBA assigned initial ratings of 10 percent for each disorder. Prior to the August 2016 rating decision, VBA had granted the Veteran service connection for PTSD with an evaluation of 50 percent effective January 25, 1999. See July 1999 rating decision. In a November 2000 rating decision, VBA increased the rating to 70 percent effective August 18, 2000, which is the rating currently in effect. VBA also found the Veteran was entitled to a total disability rating based on individual unemployability effective November 11, 2000 (a month after the date the Veteran claimed he last worked full time and after his sick leave expired). See March 2002 rating decision; December 2000 Veteran's Application for Increased Compensation Based on Unemployability. In August 2016, VA received the Veteran's notice of disagreement with the August 2016 rating decision in the legacy appeals system. In a September 2016 rating decision, VBA increased the rating for the gastrointestinal disorders to 30 percent effective August 31, 2016. In October 2016, VA received another notice of disagreement indicating the Veteran wished to appeal the effective date of the increase. In April 2018, VA received the Veteran's request to opt-in to VA's RAMP Initiative, a pilot program for entry into the modernized appeals system. 38 C.F.R. § 3.2400. The Veteran elected to have a Higher-Level Review of his claims at VBA with an informal conference. VBA accepted the opt-in election and issued a November 2018 Higher-Level Review rating decision, which increased the initial disability rating for PTSD with anxiety disorder and depression to 30 percent. In January 2019, VA received the Veteran's request to appeal the decision to the Board in the modernized appeals system through RAMP, wherein he selected the option to have a hearing with a Veterans Law Judge. However, in December 2020, the Veteran's representative indicated the Veteran no longer wished to have a hearing, and the Veteran's representative submitted a brief in support of the claims for increased ratings from December 22, 1975 for both issues. Therefore, the Board will proceed to consider the claims based on the evidence of record at the time of the RAMP opt-in election and also evidence received within 90 days of the Veteran's decision to withdraw the hearing request. 38 C.F.R. §§ 3.2400, 3.2601, 20.302(b). After reviewing the evidence of record, the Board finds VBA committed pre-decisional duty to assist errors by failing to obtain adequate examinations of the severity of the disabilities on appeal. 38 U.S.C. § 5103A. The Veteran has not received VA examinations of his disabilities for over five years for his gastrointestinal disabilities and in over twenty years for his psychiatric disabilities. The examinations of record have not considered subsequent relevant evidence including pertinent treatment records in the years following the examinations prior to the closing of the evidentiary record in the modernized appeals system. The Board finds VBA should have afforded the Veteran additional examinations of his disabilities before issuing the rating decision on appeal. Moreover, the period on appeal for rating purposes begins on December 22, 1975. As the Veteran's representative noted in a December 2020 brief, there have been many substantial changes to the rating criteria for psychiatric disorders since that date. The Board must consider applying the older criteria if it is more favorable. Unfortunately, the examinations of record do not address the changes in the rating criteria. Additionally, in the case of the gastrointestinal examinations, the Veteran's representative notes in the December 2020 brief that VBA's staging of the disability rating is based on the August 2016 examination date without an adequate opinion to support staging on that date. The Veteran's representative notes that while the examiner references decades of pertinent evidence, the examiner did not provide a retrospective opinion identifying when the severity of the Veteran's disability worsened. The Veteran's representative requests that the Board ensure VA fulfills its duty to assist the Veteran by obtaining retrospective opinions on the severity of the Veteran's disabilities back to December 22, 1975. In support of his contention that VBA did not satisfy the duty to assist, the Veteran's representative cites Chotta v. Peake, 22 Vet. App. 80, 85-87 (2008) (holding that that the duty to assist may include obtaining a retrospective medical opinion if a disability rating cannot be awarded based on the available evidence). Given the extraordinary length of the appeal period and significant gaps in the treatment records, the Board finds VBA should have obtained comprehensive, retrospective opinions on the Veteran's disabilities before issuing its rating decisions in the modernized appeals system. Therefore, the Board will remand these matters to correct VBA's pre-decisional errors in its efforts to fulfill the duty to assist. On remand, VA must obtain additional medical opinions evaluating the severity of the Veteran's disabilities during the period on appeal under each set of rating criteria from the effective date of the criteria through the present. The Board REMANDS these matters for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records for the appeal period. Reasonable attempts should be made to obtain all identified outstanding records. At least two attempts should be made to obtain any missing evidence. If evidence is unavailable, this should be noted in the Veteran's claims file. 2. After associating all outstanding relevant records with the claims file, VA must schedule additional VA examinations assessing the severity of the Veteran's service-connected psychiatric and gastrointestinal disabilities during the entire period on appeal. The examiners should address whether the Veteran's disabilities have worsened and improved over time with citation to specific time periods for worsening and improvement to the extent possible. The examiners should address the Veteran's contentions that his disabilities was more severe for rating purposes since at least December 1975. See, e.g., December 2020, Appellate Brief. Rating criteria for psychiatric disorders changed during the appeal period, to include on October 6, 1996, January 19, 1988, April 18, 1980, and March 18, 1976. The prior criteria differ substantially from the current under 38 C.F.R. § 4.130. See, e.g, 38 C.F.R. § 4.132 (1995); 38 C.F.R. § 4.132 (1987); 38 C.F.R. § 4.132 (1979); 38 C.F.R. § 4.132 (1976); 38 C.F.R. § 4.132 (1975). VA should ensure the VA mental disabilities examiner provides an opinion that is adequate to rate the severity of the Veteran's mental disabilities since December 22, 1975 through the present under each set of applicable older rating criteria as well as the newer criteria. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.