Citation Nr: 0004900 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 94-37 046 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to a rating greater than 10 percent for major depression with anxiety features from September 3, 1988; a rating greater than 30 percent for major depression with anxiety features from September 20, 1989; and a rating greater than 50 percent for major depression with post- traumatic stress disorder (PTSD), from October 4, 1991. 2. Entitlement to a rating greater than 20 percent for voiding dysfunction, from August 20, 1991, and a rating greater than 40 percent for voiding dysfunction, from October 23, 1998. 3. Entitlement to an evaluation in excess of 10 percent for post-herpetic zoster neuralgia. 4. Entitlement to Dependents Educational Assistance under 38 U.S.C. Chapter 35. 5. Entitlement to an effective date earlier than January 30, 1992 for an award of a total rating based on individual unemployability. REPRESENTATION Appellant represented by: Daniel D. Wedemeyer, Attorney WITNESSES AT HEARING ON APPEAL Appellant, and father. ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from December 29, 1986, to September 2, 1988. He was separated for medical reasons, with disability severance pay. The veteran filed a claim for service connection for PTSD in September 1988. By rating action in March 1994, service connection was granted for an acquired psychiatric disorder, rated 10 percent from September 3, 1988, and 30 percent from September 20, 1989. An NOD (notice of disagreement) was filed in October 1994 to the 30 percent rating assigned and the effective date of that rating. A rating action in April 1999 assigned a 50 percent evaluation for major depression with PTSD, from October 4, 1991. A claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The NOD of October 1994 expressed disagreement with the initial rating awards based upon the original claim. The RO has presented the issues to the Board as an increased rating for major depression with PTSD in excess of 30 percent, and earlier effective date for assignment of a 30 percent rating for major depression with PTSD. A claim for an increased rating is a new claim. Suttman v. Brown, 5 Vet. App. 127, 136 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). At the time of an assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on facts found, a practice know as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 125 (1999). As there is no final determination for the ratings for the psychiatric disorder, under Fenderson, the claims for a higher rating and the effective date of the awards, are more appropriately merged to an issue of an increased evaluation for major depression with PTSD, as shown above, based on the facts found. 38 C.F.R. § 3.400 (1999) The issue of entitlement to Dependents Educational Assistance under 38 U.S.C. Chapter 35, and entitlement to an effective date earlier than January 30, 1992, for an award of a total rating based on individual unemployability are deferred, pending the remand contained herein. The appellant's case was sent to the Board in August 1999. In September 1999 there was a request for change of attorney. 38 C.F.R. § 20.1304 (1999). In October 1999 the veteran's new attorney requested a copy of all documents in the veteran's file from January 12, 1992, and such documents were subsequently provided. At the end of November 1999 the attorney requested a 30-day extension to review the veteran's file and submit written argument on his behalf. The brief in support of the appellant's claim was received in December 1999. REMAND Preliminary review of the record, which now comprises three volumes of files, indicates a number of areas requiring development. The Board notes in passing that the veteran has not submitted any documentation of his marriage, reported to have taken place in June 1997. Major Depression with PTSD Medical records from the veteran's hospitalization at a nonservice department facility in Germany have not been secured and made a part of the record. As this hospitalization is the basis for the PTSD diagnosis, and the evaluation of his psychiatric disorder must be evaluated from his separation from service, such records would be valuable for review. The veteran, in a statement dated April 18, 1989, reported that his medical records from Germany were "not available" even though he had asked for them. He stated that his father hand carried a "six inch" thick file from Germany to Wilford Hall Medical Center. The service medical records in file are not nearly so extensive as to amount to six inches. In addition to the question of whether the record custodians may have addition pertinent records, the veteran's statements also raise a question as to whether there are medical records in his possession from his period of service. The rating criteria for psychiatric disorders changed effective November 7, 1996. Where a law or regulation changes after the claim has been filed or reopened before administrative or judicial process has been concluded, the version most favorable to the veteran applies unless congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991) Marcoux v. Brown, 10 Vet. App. 3 (1996). The veteran was provided with the old rating criteria in the October 1995 statement of the case (SOC), and the new criteria in the April 1999 supplemental statement of the case (SSOC); however, the effective date for the increase from 30 percent to 50 percent was October 4, 1991. The revised regulations contain no provision for retroactive applicability. In Rhodan v. West, 12 Vet. App. 55 (1999), the Court addressed the effective date of the revised criteria for rating mental disorders in what was apparently a claim for increase involving PTSD. (The Board notes that the facts presented in Rhodan and its companion Haywood were not clear as to whether the appeals arose from original claims or were claims for increase.) The Court held: Regardless of the exact administrative posture of the proposed changes to the regulations, there is no doubt as to which version was applicable at the time of either [Board] decision at issue here. It is well settled that the rulemaking procedures of the Administrative Procedure Act (APA), 5 U.S.C. §§ 552, 553, govern the VA regulatory process. See 38 U.S.C. § 501(c), (d); Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990). Sections 553(d) and 552(a)(1)(D) of title 5 mandate, absent some specific exceptions listed at § 553(d)(1)-(3), that the effective date of a regulation must be 30 days after the date of publication of the adopted regulation in the Federal Register. Until the statutory 30 days have passed, the regulation is not lawfully effective. See Rowell v. Andrus, 631 F.2d 699, 704 (10th Cir. 1980). Thus, prior to November 7, 1996, the revised regulations at issue here were not lawfully effective. Nor do the revised regulations allow for their retroactive application prior to November 7, 1996. When the Secretary adopted the revised mental disorder rating schedule and published it in the Federal Register, the publication clearly stated an effective date of November 7, 1996. Because the revised regulations expressly stated an effective date and contained no provision for retroactive applicability, it is evident that the Secretary intended to apply those regulations only as of the effective date. See Allin v. Brown, 6 Vet. App. 207, 211 (1994). The Secretary's legal obligation to apply November 7, 1996, as the effective date of the revised regulations prevents the application, prior to that effective date, of the liberalizing law rule stated in Karnas. "[W]here compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such an award or increase. . . shall not be earlier than the effective date of the Act or administrative issue." 38 U.S.C. § 5110(g). This effective date rule prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also McCay v. Brown, 9 Vet. App. 183, 187 (1996) ("plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation"), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). Accordingly, the Court holds that for any date prior to November 7, 1996, the Board could not apply the revised mental disorder rating schedule to a claim. Under this analysis, the claimant as a matter of law could not receive a rating on the basis of the revised criteria prior to November 7, 1996. The Board notes that subsequently, the United States Court of Appeals for the Federal Circuit vacated Rhodan in Haywood v. West, No. 99-7056 (Fed Cir. October 28, 1999). Haywood involved an appeal over the issue of entitlement to fees and costs under the Equal Access to Justice Act. Haywood argued that the government's position was not substantially justified because the Board did not sua sponte reconsider its decision following a change in the applicable law that occurred during his 120-day period for appeal following the date of the Board's decision. The Federal Circuit expressly noted that it was vacating Rhodan and remanding to the Court for adjudication of the statutory challenge raised by Mr. Haywood concerning the "putative" duty of the Board to sua sponte reconsider its decision, and "[t]he only thing we decide in this opinion is that the case is remanded for further adjudication" by the Court. In light of these circumstances, the Board acknowledges that Rhodan is not currently a controlling precedent, however, the Board finds the statutory analysis persuasive as to whether rating criteria are retroactively applicable prior to their effective dates. See Bethea v. Derwinski, 2 Vet. App. 252 (1992). Nothing argued or decided in Haywood facially challenges the analysis as to the retroactive applicability of the change in the rating criteria. The record in this case reflects multiple psychiatric diagnoses. Determining the correct classification of the current psychiatric disability is essential in order to apply properly the rating criteria. Several MMPI tests have been administered, and the results appear to vary significantly. Some of the variance has been questioned on the basis the validity of test results. (See for example the November 1988 psychological consultation.) While most examiners appear to accept generally or partially the validity of the claimant's description of his history and symptoms, others have appeared to raise doubts about the validity of the history or various symptoms. For example, a private psychological evaluation in July 1990 noted a question of malingering, and secondary awards for pain. The SSA psychiatric evaluator in October 1991 stated that the MMPI testing administered at that time suggested a wide variety of chronic somatic complaints lacking in sufficient organic basis. That examiner indicated the veteran was apt to get considerable "secondary gain" from his symptoms and to attribute many of his current difficulties to his health problems. In private psychological evaluation in January 1993, the veteran agreed on a number of drug seeking behaviors. Because of the variance of the diagnoses, and the various questions raised by record as to the validity of various components of the history or symptoms, the Board finds that comprehensive review of the veteran's claims folders and comparison of MMPI test results, should be followed by examination by a board of psychiatrists to attempt to settle the diagnostic classification of all psychiatric pathology currently manifest. Voiding Dysfunction The Board notes that the service connection was granted for voiding dysfunction by rating action in March 1994, with a 20 percent evaluation from August 20, 1991. A NOD as to the rating assigned was filed in October 1994. The claim continued on appeal, and a rating action in April 1999 assigned a 40 percent evaluation for the voiding disorder from October 23, 1998. The voiding dysfunction claim is thus an original claim must also be considered under Fenderson. The March 1994 rating action for voiding dysfunction evaluated at 20 percent from August 20, 1991, utilized Diagnostic Code 7512. Rating criteria for the genitourinary system changed on February 17, 1994, and again on October 8, 1994. Prior to February 17, 1994, Code 7512, chronic cystitis, provided a 20 percent evaluation when the condition was moderately severe, manifested by diurnal and nocturnal frequency with pain, tenesmus. From February 17, 1994, chronic cystitis, including interstitial and all etiologies, infectious and non- infectious, was rated as voiding dysfunction, based on symptom areas such as urine leakage, frequency, or obstructed voiding. With urine leakage, a 20 percent rating is contemplated with requirement for wearing of absorbent material which must be changed less than 2 times per day. The next higher rating, 40 percent was warranted with requirement for wearing absorbent materials that must be changed 2 to 4 times per day. Urinary frequency, with daytime voiding interval less that 1 hour, or; awakening to void 5 or more times per night, a 40 percent rating would be assigned. If the daytime voiding interval was between 1 and 2 hours, or; awaking to void 3 to 4 times per night, a 20 percent rating was assigned. Obstructed voiding, with urinary retention requiring intermittent or continuous catheterization warrants a maximum 30 percent evaluation. Marked obstructive symptomatology with specific criteria, warranted a 10 percent evaluation. The changes to the criteria governing genitourinary disabilities of October 1994 did not change these codes. During the general medical examination by the VA in October 1998, the veteran reported urinating up to 6 times per night, 8 times during the day, with difficulty starting and finishing urination and dripping at the end of urination "consistent with incontinence." It was recorded that 4 cystoscopies done over the years "apparently all have confirmed the presence of herpes zoster infection." The record did not show that the examiner reviewed the claims file. The diagnoses were voiding dysfunction and post- herpetic neuralgia. Private medical records show that cystoscopy in July 1990 was normal. Also in that period there was a diagnosis of history of herpes cystitis. Cystoscopy in March 1991 found no erosions or ulcers. Assessment was chronic cystitis. When the veteran was hospitalized in December 1992, and January 1993, voiding cystourethrograms demonstrated no abnormalities. When he was hospitalized in late August and early September 1993, it was noted that there had always been a question of factitious hematuria, and as past cystoscopies were always negative, there was little to be gained by another cystoscopy. A VA peripheral nerve examination in September 1996 noted autonomic dysfunction in voiding the bladder and possibly the anal sphincter. Voiding dysfunction evaluation in September 1996 noted hesitancy, intermittent stream, and pain when urinating, nocturia 4 times per night. The diagnosis was probable herpes zoster versus dysfunctional voiding. In November 1996 the veteran reported being able to urinate with moderate difficulty. In February 1997, it was noted that the veteran had "hyperreflexic" bladder. The record further discloses that a psychophysiological pain profile in January 1993 found that the more stress the veteran experienced, the more his body reacted. His lower torso muscle tension was abnormally high and he was bracing his abdominal muscles and maintaining sensitivity in the groin area. In April 1997, the veteran reported nocturia 3 to 4 times per night. In August 1997 it was noted that he had no dysuria, or bowel symptoms, but he did have difficulty starting a stream. The history provided during the VA examination in October 1998 appears to be at odds with significant clinical evidence and statements of medical history listed in the last paragraph. It would appear that evaluation of the veteran's voiding dysfunction would benefit by review of the claims file, in conjunction with an examination and evaluation. Further, while the original voiding disorder rating included consideration of pain, the current criteria apparently does not, and the veteran's then attorney in a September 2, 1996, statement raised consideration of 38 C.F.R. § 3.321(b)(1) for voiding dysfunction, as has the veteran's current attorney, in December 1999. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998). In April 1996, the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). In July 1996, without overtly overruling Floyd, the Court held that § 3.321(b)(1) did not preclude the Board from reaching a conclusion on its own that a claim does not meet the criteria for submission pursuant to the regulation. Bagwell v. Brown, 9 Vet. App. 337 (1996). Under the circumstances, the Board is constrained to note that the Court otherwise has also held that the Board must address referral under § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these holdings in mind, the Board finds that with the veteran's complaints of pain, and the hospitalizations for bladder complaints in the past, the request for the RO to consider the applicability of § 3.321(b)(1) warrants an expressed review by the RO. Post-Herpetic Zoster Neuralgia The record shows that the veteran has been hospitalized on multiple occasions for severe pain, with diagnoses of post- herpetic neuralgia. In September 1989 it was noted that the neuralgia did not radiate into the leg. A record dated July 30, 1990, noted that on evaluation of supra pubic pain, the veteran reported pain relief with normal saline solution. Private hospitalization in July and August 1990 resulted in diagnoses of acute exacerbation of suprapubic lower abdominal pain, probably secondary to post-herpetic neuralgia as well as supratentorial component, and history of herpes cystitis and neuralgic type pain. When the veteran was hospitalized in August 1990, the impressions were herpetic cystitis, recurrent, with hematuria and severe pain suggestive of herpes simplex rather than zoster; post-herpetic neuralgia, chronic but not the cause of "these four attacks of pain." It was noted that no other neurological abnormalities were suggestive of referred pain pattern from peripheral central nervous system from the lumbosacral or conus medullaris or cauda equina area. In March 1991, it was recorded that the neuralgia possibly included left lateral femoral cutaneous nerve involvement. EMG (electromyography) report in April 1991 was consistent with mild L2-L3 radiculopathy. The examiner noted that literature showed herpes zoster could "jump" dermatomes and cause sensory problems. In May 1991 it was recorded that the veteran had been in an automobile accident in 9 months earlier, with low back pain reported. A lumbar puncture in June resulted in an assessment of varicella zoster radiculopathy. A hospital record from June 1993 noted many of the veteran's exacerbation's of pain were related to psychologic stress, and it was not believed that he had true post-herpetic neuralgia pain based on the old EMG from 1991, that showed radiculopathy and a strong psychologic component to his pain. Records from August and September 1993 hospitalization also noted a strong psychologic overlay to pain but it was also believed that the had true neuralgia pain, and radiculopathy by EMG. A neurology evaluation in June 1994 found herpes zoster with spread to dermatomes beyond L1 on the right, and new symptoms likely secondary to herpes zoster as well. On VA hospitalization in January and February 1995 for burning type pain in the right abdomen radiating to the back and lateral things, the diagnoses were condition requiring chronic pain management program, and history of herpetic neuralgia. A VA peripheral nerve examination in September 1996 resulted in diagnosis of post-herpetic neuralgia an numbness including T11, T12, L1-L5, and S3 and S4 on the right and L1-L3 on the left. When VA hospitalized the veteran in August 1997, he was curled in a fetal position and moaning in pain on the floor in the neurology service. A MRI (magnetic resonance imagery) showed degenerative disk disease in the thoracolumbar junction and in the lumbar spine. The diagnoses were possible opiate dependence, chronic pain, and neuralgia, possibly post-herpetic. VA general medical examination in October 1998 included diagnosis of post-herpetic neuralgia, and the examiner opined that the peripheral nerve disorder was caused by neuritis. Because of the veteran's post service back injury, report of degenerative disc disease, and the widely varying opinions as to extent and status of post-herpetic neuralgia, the Board believes that there should be comprehensive review of the claims folders, followed by examination by appropriate specialist(s), and testing, to determine the nature, extent and status of any post-herpetic neuralgia. Veteran has been hospitalized and treated on numerous occasions for post-herpetic neuralgia, and his then attorney requested in a September 2, 1996, statement, consideration of this condition under 38 C.F.R. § 3.321(b)(1), based on the frequent hospitalizations, and marked interference with employment. This request has also been made by the veteran's current attorney. As noted in the above discussion of extraschedular evaluation, the Board believes that such consideration should be extended to the veteran. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In order to fulfill its statutory duty to assist the veteran and adequately develop his claim, the Board believes that further development, as specified below, is required. See 38 U.S.C.A. § 5107(a). Accordingly, the case is remanded to the RO for the following actions. 1. The veteran should be permitted to submit or identify any other evidence in support of his claim. The appellant 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). 2. The RO, with any necessary assistance from the veteran, should attempt to secure the medical records pertaining to the veteran's hospitalization at nonservice department facilities in Germany. If the veteran or his father have copies of any medical records from his period of service, the veteran should submit them to the RO to ensure that all available records can be reviewed. 3. The RO should secure all records of treatment for the veteran, VA or private, from 1997 to the present. The veteran should also submit documentation of his marriage. 4. Following the above, but not contingent upon whether additional records are obtained, the RO should arrange for the veteran to undergo complete psychological testing by the VA. In addition to an interpretation of the current testing, the medical provider should be requested to compare the current testing with the prior testing of record and indicate what, if anything, such a comparison illuminates as to the classification and severity of any current psychiatric pathology. 5. Following completion of the foregoing, the veteran is to be scheduled for a comprehensive VA psychiatric examination by a board of two physicians. The claims folder must be made available to and reviewed by the examiners in conjunction with the requested study. The purpose of the examination is to clarify the correct psychiatric diagnoses and to provide findings as to the severity of the manifestations of the disabilities in view of the conflicts in the record in these areas. The examiners should identify all Axis I and, if present, Axis II diagnoses, currently warranted and address any conflicts found between their conclusions and the diagnostic findings noted in the evidence associated with the claims file. Prior psychological test results should be compared to current findings, and any conflicts discussed and resolved, if feasible. A complete rationale for any opinion expressed must be provided. 4. After the above, the RO should review the ratings assigned for the service-connected psychiatric disorder, and any adjustment (percentage or effective date) must be accompanied by complete rationale, to include the applicable rating criteria in effect at the time. 5. The veteran should also be afford VA neurological urology examinations in order to determine the nature and extent of the post-herpetic zoster neuralgia and voiding dysfunction disabilities. The claims folder must be made available to and reviewed by the physician in conjunction with the examination. The examiner should record pertinent medical complaints, symptoms, and clinical findings. All necessary special studies and tests are to be accomplished. The neurologist should make a specific determination as to neuropathy from degenerative disc disease, versus post- herpetic zoster neuralgia, and areas of involvement. Any conflicts found between the current neurology and urology findings and the diagnostic findings noted in the evidence associated with the claims file should be resolved, if feasible. A complete rationale for any opinion expressed must be provided. 6. Following the above, the RO should review the ratings assigned for the voiding dysfunction, to include reference to Fenderson, and whether consideration of the voiding dysfunction and post- herpetic zoster neuralgia conditions under 38 C.F.R. § 3.321(b)(1) is applicable. The Court has made it clear that the "duty to assist" is not a one way street, and that the claimant can not stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The veteran is advised that failure to report for any scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in these claims. Moreover, under 38 C.F.R. § 3.655 (1996), where a claimant fails without good cause to appear for a scheduled examination in conjunction with a claim for increase, the claim will be denied. Connolly v. Derwinski, 1 Vet. App. 566 (1991). If any benefits sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. If any development is incomplete, including if any requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the 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. 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. Richard B. Frank 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) (1999).