Citation Nr: 0000309 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 95-03 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating greater than 60 percent for human immunodeficiency virus (HIV)-related illness with major depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from October 1986 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. REMAND The veteran seeks an increased schedular disability rating for HIV-related illness with major depression, currently evaluated as 60 percent disabling. Where a disability has already been service connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well grounded claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). Therefore, VA has a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1469 (1997). This duty includes the conduct of a thorough and comprehensive medical examination and the securing of pertinent VA and private medical records. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Diagnostic Code (Code) 6351 provides for a 60 percent rating is awarded when there are refractory constitutional symptoms, diarrhea, and pathological weight loss, or; following development of AIDS-related opportunistic infection or neoplasm, for which it is the minimum rating. A 100 percent schedular rating is assigned when there is AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems, or; when there is HIV- related illness with debility and progressive weight loss, without remission, or few or brief remissions. Note 2 to Code 6351 provides that psychiatric or central nervous system manifestations, opportunistic infections, and neoplasms may be rated separately under appropriate codes if higher overall evaluation results, but not in combination with percentages otherwise assignable under Code 6351. 38 C.F.R. § 4.88b. First, the Board observes that during the July 1998 VA examination, the veteran reported that he had experienced an increasing number of upper respiratory tract infections. During the March 1999 VA examination, he indicated that he had been on antibiotics for upper respiratory problems three or four times in the past year. At that time, he was taking medication for bronchitis diagnosed the previous week. The medical evidence of record does not document the diagnosis and treatment of any of the alleged upper respiratory infections. On remand, the RO should attempt to secure any supporting records identified by the veteran. Second, the March 1999 VA examination report indicated that the veteran continued to have problems with depression. The report states that he was taking Prozac. VA notes dated in March 1997, the only medical evidence of record that deals with psychiatric symptoms, do not reveal a prescription for Prozac. The RO should attempt to secure any medical records associated with treatment for related psychiatric problems. Finally, it is unclear from a review of the pertinent rating actions whether the RO considered the provisions of Note 2 to Code 6351. On remand, the RO should clearly explain any impact of Note 2 on its determination. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran in writing and request that he provide the names and addresses of any VA or private medical provider from whom he had received treatment for respiratory infections since 1994 and for psychiatric problems since March 1997. After securing the necessary releases, the RO should attempt to obtain the records of such treatment. In any event, the RO should ensure that it has secured the veteran's VA medical records since July 1998. 2. After completing any necessary development in addition to that specified above, the RO should schedule the veteran for special VA examinations, including psychiatric or pulmonary examinations, if indicated by any newly-secured evidence, in order to ascertain if the veteran is suffering from psychiatric manifestations or opportunistic infections that could be rated separately from the service- connected HIV disorder. If additional studies are deemed necessary, prior to the examinations, the RO must inform the veteran, in writing, of all consequences of his failure to report for the examinations in order that he may make an informed decision regarding his participation in said examinations. 3. Thereafter, the RO should readjudicate the veteran's claim of entitlement to a disability rating greater than 60 percent for HIV-related illness with major depression, taking care to address all pertinent laws and regulations. If the disposition remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran unless notified. This claim must be afforded expeditious treatment by the RO. 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 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. RENÉE M. PELLETIER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1998).