Citation Nr: 1754189
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 03-16 453 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1. Entitlement to an increased rating in excess of 50 percent prior to March 2016 for a psychiatric disorder, to include a generalized anxiety disorder and panic attacks, and 70 percent disabling thereafter.

2. Entitlement to an initial increased rating in excess of 10 percent for carpal tunnel syndrome of the right and left upper extremities.

3. Entitlement to an earlier effective date than January 18, 2011, for the grant of entitlement to service connection for carpal tunnel syndrome of the right and left upper extremities.

4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for peripheral neuropathy of the right and left upper extremities, to include as secondary to the service-connected Diabetes Mellitus, Type II with Pruritus at genital area.

REPRESENTATION

Veteran represented by: Kathy A. Lieberman, Attorney

ATTORNEY FOR THE BOARD

P. Yoffe, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1968 to September 1970.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In June 2002, the RO granted an increased rating to 30 percent for a psychiatric disorder. In a decision dated April 2006, the Board denied a claim for an increased rating for an acquired psychiatric disorder. In September 2006, the United States Court of Appeals of Veterans Claims (CAVC) issued an Order vacating the April 2006 Board and remanded the case to the Board. The Board remanded the Veteran’s claim in April 2007 for additional development.

In June 2010, the RO granted a 50 percent disability rating for the Veteran’s service-connected psychiatric disorder effective from February 2009. The Veteran’s representative filed a Notice of Disagreement regarding the effective date, seeking an increase rating date since 2001, when the Veteran filed the claim. In July 2014, the Board remanded for additional records and a VA examination. In November 2016, the RO granted a 70 percent disability rating for the Veteran’s service-connected psychiatric disorder effective March 2016. The Veteran’s representative filed a Notice of Disagreement regarding the effective date, seeking an increased rating effective from March 2000.

An increased rating remains on appeal, because a grant of less than the maximum available rating does not terminate the appeal, unless the veteran expressly states he is satisfied with the assigned rating. See AB v Brown, 6 Vet App 35, 38 (1993). Moreover, under 38 C. F. R. § 3400(o)(2), an increased evaluation can be granted up to one year prior to the date of claim. Therefore, the one year period prior to December 2001, is part and parcel of the increased rating claim before the Board. Given the representative’s own admission, however, that the claim for an increased rating was filed in December 2001, an effective date more than one year prior to the date of receipt of that claim is prohibited under the law.

For reasons discussed below, an additional remand is necessary.

The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.

REMAND

The Board finds that further development is needed prior to a disposition of the issue on appeal.

The Board, in the July 2014 remand, requested that the VA examiner:

[D]escribe symptoms and offer an opinion as to the severity of the Veteran’s service connected psychiatric disorder, specifically the level of occupational and social impairment the Veteran’s psychiatric disorder creates. The examiner must also enter a complete multiaxial evaluation, and assign a Global Assessment of Functioning (GAF) score. The examiner must provide an explanation of what the GAF score represents in terms of his psychological, social, and occupational functioning

In the March 2016 VA examination, the examiner did not assign a GAF score, as requested by the Board. The March 2016 VA examination was conducted using the DSM-V criteria, which does not include GAF scores.

The Board notes that the DSM-IV has been updated with a Fifth Edition (DSM-V), and VA regulations reflect this update, including in the Schedule of Ratings Mental Disorders. See 38 CFR § 4.130. GAF scores are not used in the DSM-V. However, the new regulations only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board, even if such claims are subsequently remanded. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The Veteran’s claim (originally entitled as a claim for “anxiety”) was certified to the Board prior to August 4, 2014, with the last remand in July 2014. As the DSM-IV is applicable to the present appeal, it is appropriate to consider GAF scores as a factor in assessing the severity of the Veteran’s psychiatric disorder, as was mandated in the July 2014 Board remand. As such, an addendum report is warranted on remand. See 38 C.F.R. § 3.159(c)(4); Stegall v. West, 11 Vet. App. 268 (1998).

Additionally, the AOJ has not issued an SOC with respects to the Veteran’s claims for an initial increased rating in excess of 10 percent for carpal tunnel syndrome of the right and left upper extremities; entitlement to an earlier effective date than January 18, 2011, for the grant of entitlement to service connection for carpal tunnel syndrome of the right and left upper extremities; and whether new and material evidence has been received to reopen a claim for entitlement to service connection for peripheral neuropathy of the right and left upper extremities, to include as secondary to the service-connected Diabetes Mellitus, Type II with Pruritus at genital area. The AOJ must issue an SOC for these claims. Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding medical records pertinent to treatment from the VA or private health care providers, along with obtaining any necessary releases.

2. Return the claims file to the VA examiner who conducted the Veteran’s March 2016 VA examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims file and the Remand have been reviewed. If the same examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested addendum opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

After reviewing the record, the examiner should: (a) Address whether the March 2016 VA examination findings under the DSM-V regarding the current nature and severity of the Veteran’s service-connected psychiatric disorder are materially different than findings that would have been made under the DSM-IV and, if so, discuss any differences. In addition, (b) assign a current GAF score for the Veteran pursuant to the DSM-IV.

A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought.

3. Issue an SOC with respect to the Veteran’s claims for (I) an initial increased rating in excess of 10 percent for carpal tunnel syndrome of the right and left upper extremities; (II) entitlement to an earlier effective date than January 18, 2011, for the grant of entitlement to service connection for carpal tunnel syndrome of the right and left upper extremities; and (III) whether new and material evidence has been received to reopen a claim for entitlement to service connection for peripheral neuropathy of the right and left upper extremities, to include as secondary to the service-connected Diabetes Mellitus, Type II with Pruritus at genital area. The SOC must include notification of the need to timely file a substantive appeal to perfect appellate review of these issues.

4. After completing the above development and any other action deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are denied, furnish the Veteran and his representative a Supplemental Statement of the Case after affording the requisite time period to respond. This matter should then be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

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 (2012).

_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s