Citation Nr: 0005715 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 96-16 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for dysthymic disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for mitral valve prolapse with pacemaker. 3. Entitlement to a total disability rating for compensation purposes on the basis of individual employability (TDIU). REPRESENTATION Appellant represented by: American Red Cross WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD Richard T. Foss-Lacey, Associate Counsel INTRODUCTION The veteran had active service from July 1972 to July 1975, and from July 1989 to June 1993. The current appeal arose from a June 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO, in pertinent part, denied entitlement to service connection for heart disease. In November 1996 the RO granted entitlement to service connection for dysthymic disorder with assignment of a 30 percent evaluation. A statement from the representative subsequent to this rating decision questioning the 30 percent evaluation assigned constituted a notice of disagreement with the above determination. In November 1997 the Board of Veterans' Appeals (Board) remanded the case to the RO for further development and adjudicative actions referable to the claim for service connection for heart disease. In January 1999 the RO affirmed the denial of entitlement to service connection for heart disease, affirmed the 30 percent evaluation for dysthymic disorder, and denied entitlement to a TDIU. The testimony taken at the May 1999 hearing before a hearing officer at the RO constituted a notice of disagreement with the January 1999 rating decision. The veteran was issued a statement of the case on the issues of the denial of an initial evaluation in excess of 30 percent for dysthymic disorder, a TDIU, and service connection for heart disease. The August 1999 supplemental statement of the case was limited to the issues of entitlement to an increased evaluation for dysthymic disorder and a TDIU. In August 1999 the RO granted entitlement to service connection for mitral valve prolapse with pacemaker with assignment of a 10 percent evaluation. In his August 1999 substantive appeal to the Board, the veteran specified that he was appealing all issues; namely, the denial of entitlement to an initial evaluation in excess of 30 percent for dysthymic disorder and a TDIU, and the 10 percent for mitral valve prolapse with pacemaker. The RO did not issue a statement of the case with respect to the issue of the evaluation of 10 percent for mitral valve prolapse with pacemaker. Where there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case, and the RO's failure to issue such is a procedural defect requiring remand. Godfrey v. Brown, 7 Vet. App. at 408-10 (1995); Manlincon v. West, 12 Vet. App. 238 (1999). The case has been returned to the Board for further appellate review. REMAND These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Concerning the appellant's well grounded claims of entitlement to increased evaluation for his dysthymic disorder and a TDIU, see Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board is of the opinion that such claims should be remanded to the RO for further evidentiary development, to include comprehensive VA examinations. Firstly, it has been quite some time since the appellant's service-connected disabilities have been evaluated on the basis of VA examination. The appellant has presented medical records in support of his case, but, again, he has not been scheduled for relevant VA examinations in a long period of time. Thus, the actual current status - nature and extent of severity - of his service-connected disabilities is not known. Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1999), the Board is deferring adjudication of the claimant's appeal pending a remand of the case to the RO for further development as follows: 1. The appellant has the right to submit additional evidence and argument on the matter(s) which the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who have treated him for his service- connected dysthymic disorder, mitral valve prolapse with pacemaker, hiatal hernia, and bilateral hearing loss. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports and those from a Vet Center from which the veteran reports obtaining treatment for his dysthymic disorder. 3. The RO should arrange for a VA psychiatric examination of the veteran to ascertain the extent of severity of his dysthymic disorder. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination, and the examiner must annotate the claims file in this regard. Any further indicated special studies should be conducted. The examiner should identify all of the veteran's associated symptomatology in order to determine the impairment caused by dysthymic disorder. If there are other psychiatric disorders found, in addition to dysthymic disorder, the examiner should specify which symptoms are associated with each disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be so indicated. If a psychiatric disorder(s) other than dysthymic disorder is or are found on examination, the examiner should offer an opinion as to whether any such disorder is causally or etiologically related to dysthymic disorder, and, if so related, whether the veteran's dysthymic disorder has any effect on the severity of any other psychiatric disorder. Following evaluation, the examiner should provide a numerical score on the Global Assessment of Functioning (GAF) Scale provided in the Diagnostic and Statistical Manual for Mental Disorders, in relation to the veteran's impairment from dysthymic disorder. The examiner must include a definition of the numerical GAF score assigned, as it relates to the veteran's occupational and social impairment. If the historical diagnosis of dysthymic disorder is changed following examination, the examiner should state whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. The examiner must be requested to express an opinion as to the impact of the veteran's dysthymic disorder on his ability to work. The examiner must opine as to whether his dysthymic disorder has rendered him unable to work or unemployable. Any opinions expressed must be accompanied by a complete rationale. 4. The RO should arrange for a VA cardiology examination of the veteran by an appropriate specialist for the purpose of ascertaining the nature and extent of severity of his mitral valve prolapse with pacemaker implantation. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examiner must annotate the examination report that such review was undertaken. Any further indicated special studies must be conducted. Any opinions expressed by the examiner as to the severity of the appellant's heart disease must be accompanied by a complete rationale. 5. The RO should arrange for VA audiology-ear disease examinations of the veteran by appropriate specialists for the purpose of ascertaining the nature and extent of severity of his bilateral hearing loss. The claims file and a separate copy of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations and the examiners must annotate the examination reports that such reviews were undertaken. Any further indicated special studies must be conducted. Any opinions expressed by the examiner(s) as to the severity of the appellant's bilateral hearing loss must be accompanied by a complete rationale. 6. The RO should arrange for a VA gastrointestinal examination of the veteran by an appropriate specialist for the purpose of ascertaining the nature and extent of severity of his hiatal hernia. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduct and completion of the examination and the examiner must annotate the examination report that such review was undertaken. Any further indicated special studies should be conducted. Any opinions expressed by the examiner must be accompanied by a complete rationale. 7. The RO should issue a statement of the case as to the denial of entitlement to an initial evaluation in excess of 10 percent for mitral valve prolapse with pacemaker. The veteran should be notified of the need to file a substantive appeal within the requisite period of time if he wishes appellate review. 8. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 9. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issues of entitlement to an initial evaluation in excess of 30 percent for dysthymic disorder to include documentation of its consideration of the applicability of 38 C.F.R. § 3.321(b)(1) (1999), and entitlement to a TDIU. If the benefits sought on appeal, for which a timely notice of disagreement has been filed, are not granted to the appellant's satisfaction, the RO should issue a Supplemental Statement of the Case. A reasonable period of time for a response should be afforded. Thereafter, this case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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) (1999).