Citation Nr: 18154187
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 13-12 715
DATE:	November 29, 2018
REMANDED
Entitlement to higher staged initial ratings for depression, not otherwise specified, rated as 50 percent disabling prior to March 26, 2014, and as 70 percent disabling from March 26, 2014, is remanded.
Entitlement to special monthly compensation (SMC) by reason of being housebound is remanded.
Entitlement to a total disability rating for compensation purposes based upon individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1979 to March 1982.
The Veteran seeks entitlement to higher staged initial ratings for depression, entitlement to SMC by reason of being housebound, and entitlement to a TDIU.  Unfortunately, the Board finds that these issues must be remanded for additional development before they can be adjudicated on the merits.  
By way of history, a May 2015 Board decision, in part, denied entitlement to an effective date earlier than March 4, 2008, for the award of service connection for depression, not otherwise specified, to include on the basis of clear and unmistakable error (CUE) in a May 1982 Rating Decision.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and was awaiting a decision from the Court at the time of the Board’s most recent decision in December 2016.  At that time, the Veteran's attorney requested that adjudication of the issues of entitlement to higher initial ratings for depression, entitlement to a TDIU, and entitlement to SMC by reason of being housebound be deferred as the Court's decision regarding an earlier effective date for the award of service connection for depression may have impacted these issues.  As such, the Board deferred adjudication of the issues and remanded them to the RO, as they were considered to be inextricably intertwined with the effective date / CUE issue then before the Court.  
Since that time, in a May 2017 Memorandum Decision, the Court affirmed the Board's May 2015 decision denying an effective date earlier than March 4, 2008, for the award of service connection for depression, not otherwise specified, to include on the basis of CUE in a May 1982 rating decision.  Subsequently, in a July 2018 decision, the United States Court of Appeals for the Federal Circuit affirmed the Court’s May 2017 Memorandum Decision.  As such, the deferred issues of entitlement to higher staged initial ratings for depression, entitlement to SMC by reason of being housebound, and entitlement to a TDIU have now returned to the Board.
At the outset, the Board recognizes the “Response of Veteran . . . To Supplemental Statement of Case by Agemcy [sic] of Original Jurisdiction Issued by Letter Dated October 9, 2019 [sic],” submitted by the Veteran’s attorney in November 2018, in which he voiced several constitutional, statutory, and regulatory objections to the procedural history of this case.  However, in this correspondence, the Veteran’s attorney addressed several issues which are not currently before the Board.  First, the November 2018 response addressed the “Proper Rating of the Cervical Spine Claim Based on the Same Evidence and on 1994 X-ray and the Testimony We’ll Submit from Witnesses in the APC to the Rear End Collision and its Effect on [the Veteran].”  The Board is not certain as to which claim this is referring, as the Veteran is not service-connected for a cervical spine disability.  Rather, the Veteran initially filed a claim of entitlement to service connection for a cervical spine disability in October 1998, which was denied in a March 1999 Rating Decision.  Although the Veteran submitted a Notice of Disagreement as to another issue in March 1999, he did not expressly disagree with the RO’s denial of his cervical spine claim.  A March 2008 Rating Decision reopened the Veteran’s claim of entitlement to service connection for a cervical spine disability, but then denied it on the merits.  Most recently, the Veteran petitioned to reopen the previously-denied cervical spine claim in January 2013.  In an April 2013 Rating Decision, the RO declined to reopen the claim, and the Veteran submitted a Notice of Disagreement later that month.  In a May 2015 decision, the Board instructed the RO to issue a Statement of the Case with respect to the petition to reopen a cervical spine claim and then to advise the Veteran that to vest the Board with jurisdiction over the issue, a timely substantive appeal must be filed.  Pursuant to the Board’s Remand, a Statement of the Case was issued in July 2015, at which time the Veteran was notified that he had 60 days in which to appeal the decision to the Board.  However, the Veteran never filed a substantive appeal with respect to his denied petition to reopen the claim of entitlement to service connection for a cervical spine based on the receipt of new and material evidence.  As such, a cervical spine claim is not currently before the Board.  See 38 C.F.R. § 20.202 (2014).
In the event that the Veteran’s attorney November 2018 correspondence is referring to an increased evaluation claim for the Veteran’s service-connected L5-S1 spondylolisthesis with bilateral spondylosis, the Board emphasizes that this issue was already adjudicated by the Board in its December 2016 decision.  There is no indication that the Veteran ever appealed the Board’s December 2016 decision to the Court.  As such, the Board’s December 2016 decision is final, and the issue of entitlement to an increased evaluation for L5-S1 spondylolisthesis with bilateral spondylosis is also not currently before the Board.  
Additionally, the attorney’s November 2018 correspondence addressed the “Proper Rating of All Claims Arising Under VA Regulation 3.156, Regardless of Whether or Not They May Also Meet the Criteria for Clear and Unmistakable Erorr [sic] and the Acceptance of Subequent [sic] Evidence When the Original Rating Board Has Not Only Failed to Obtain the Materially Relevant Service Record but Has Flatly and Arrogantly Refused to Consider or Even Glance at These Records Given to Them by the Veteran Claimant.”  Again, the Board is not certain as to which claim this is referring.  To this point, however, the Board reiterates that in a May 2017 Memorandum Decision, the Court affirmed the Board’s May 2015 decision denying an effective date earlier than March 4, 2008, for the award of service connection for depression, not otherwise specified, to include on the basis of CUE in a May 1982 rating decision.  Moreover, in a July 2018 decision, the United States Court of Appeals for the Federal Circuit affirmed the Court’s May 2017 Memorandum Decision.  As such, these issues are not currently before the Board.  
Indeed, the only issues currently before the Board are (1) entitlement to higher staged initial ratings for depression, not otherwise specified; (2) entitlement to SMC by reason of being housebound; and (3) entitlement to a TDIU, as set forth in the caption above.  
Turning to these issues, the Board acknowledges that the attorney’s November 2018 correspondence requested that the Veteran have the opportunity to testify at a Decision Review Officer (DRO) hearing with respect to the issues on appeal.  Although the Veteran and his attorney already testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2014, this testimony only pertained to claims of entitlement to increased evaluations, and earlier effective dates, for the Veteran’s service-connected depression and L5-S1 spondylolisthesis.  As such, the Veteran has not been afforded an opportunity to present testimony specific to his claims of entitlement to SMC by reason of being housebound, and/or entitlement to a TDIU.  As such, the Board determines that remand for an opportunity to testify at a DRO hearing is warranted, pursuant to 38 C.F.R. § 20.1304(b) (2017).  
Furthermore, the Board notes that the Veteran was most recently provided with a VA Mental Disorders (other than PTSD and Eating Disorders) examination in November 2015, approximately three years ago.  Since that time, evidence has been added to the record (in the form of the Veteran’s June 2016 Appellant’s Brief before the Court) suggesting that his service-connected psychiatric symptomatology was worse than the symptomatology reflected in the November 2015 VA examination report.  Indeed, the June 2016 Appellant’s Brief indicated that the Veteran’s psychiatric symptomatology rendered him a “definite danger to himself and others” and “confined to his house practically all the time, whether mentally or physically or both.”  
VA's duty to assist includes the conduct of a thorough and comprehensive medical examination.  Robinette v. Brown, 8 Vet. App. 69 (1995).  When available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination.  Weggenmann v. Brown, 5 Vet. App. 281 (1993).  As such, the Veteran should be scheduled for a new VA examination to assess the current severity of his service-connected psychiatric symptomatology.  Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997) (it is within VA’s duty to assist to afford the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the claimed disability has worsened).
Finally, a review of the record reflects that the Veteran receives ongoing VA medical treatment.  However, the most recent VA treatment records associated with the claims file are dated in November 2015, approximately three years ago.  As such, the Board finds the AOJ should obtain an updated copy of the Veteran’s VA treatment records and associate them with the claims file.  38 U.S.C. §5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency).
The matters are REMANDED for the following action:
1. Obtain all VA treatment records for the Veteran dated from November 2015 through the present, and associate them with the claims file.
2. Provide the Veteran with a VA examination to determine the current nature and severity of his service-connected depression.  The claims file should be made available to the examiner in conjunction with the examination.  All necessary testing should be conducted.  The rationale for all opinions should be provided.  
The examiner is asked to determine the current nature and severity of the Veteran's service-connected depression.  The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his depression and any other mental health disorder.  All signs and symptoms of the Veteran's depression should be reported in detail, and the examiner should describe the impact of the Veteran's depression on his occupational and social functioning.
A complete rationale for each opinion offered should be provided.
3. After completing the above action items to the extent possible, schedule the Veteran for a DRO hearing at the earliest opportunity with respect to all remanded issues for which the Veteran has requested a DRO hearing.  Notify the Veteran of the date, time, and location of the hearing, and add the notice letter to the Veteran's claims file.  Add a summary or transcript of the DRO hearing to the Veteran's claims file one it has been conducted.
 
4. After the foregoing development is completed, readjudicate the claims on appeal.  If any benefit sought remains adverse to the Veteran, then furnish the Veteran and his attorney with a Supplemental Statement of the Case and return the case to the Board.

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Anthony M. Flamini, Counsel

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