Citation Nr: 0816799 Decision Date: 05/22/08 Archive Date: 06/04/08 DOCKET NO. 06-05 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for a gastric ulcer, currently rated as 40 percent disabling. 2. Entitlement to an increased rating for idiopathic seizure disorder, currently rated as 10 percent disabling. 3. Entitlement to service connection for colon problems. 4. Entitlement to service connection for Klinefelter's syndrome. 5. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and spouse ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from October 1986 to August 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted an increased rating from 10 to 40 percent for a gastric ulcer, continued a rating of 10 percent for idiopathic seizure disorder, denied service connection for Klinefelter's syndrome, and reopened the veteran's previously denied claim for adjustment disorder but denied service connection for the same on the merits. In November 2007 the veteran and his spouse testified before the undersigned Acting Veterans Law Judge at a hearing held at the RO. The transcript of that hearing is of record. The veteran seeks service connection for psychiatric disability. Although service connection for an adjustment disorder was denied by VA in an unappealed April 1997 rating decision, since that time his condition has been diagnosed as a major depressive disorder. Because service connection was not previously denied for major depressive disorder, that disability must be considered de novo. Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008); see also Ephraim v. Brown, 82 F.3d. 399, 402 (Fed. Cir. 1996). For this reason, and notwithstanding that the Board also previously indicated that the issue was one of reopening previously denied adjustment disorder, the issue on appeal is more properly characterized as entitlement to service connection for a psychiatric disorder, including depression. The issues of entitlement to an increased rating for a seizure disorder and service connection for depression are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. At all times during the course of the appeal, the veteran's gastric ulcer has been manifested by no more than moderately severe symptoms, with less than severe symptoms with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. 2. At his October 2007 hearing before the Board, the veteran withdrew his appeal concerning entitlement to service connection for colon problems. 3. The competent medical evidence demonstrates that the veteran's Klinefelter's Syndrome is a congenital disorder (congenital chromosomal abnormality) that was not incurred in or aggravated by his service. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 40 percent for a gastric ulcer have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107(a) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.114, Diagnostic Codes 7304, 7305 (2007). 2. The criteria for withdrawal of a substantive appeal of the issue of entitlement to service connection for colon problems have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 3. Service connection for Klinefelter's Syndrome is not warranted. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107(a) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303(c), 4.9 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. In February 2003, prior to the initial adjudication of the claims, and in March 2005 after adjudication of the claims, the veteran was notified of the evidence not of record that was necessary to substantiate the claims. He was told that he needed to provide the names of persons, agency, or company who had additional records to help decide his claims. He was informed that VA would attempt to obtain review his claims and determine what additional information was needed to process his claims, schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. It was also requested that he provide evidence in his possession that pertained to the claims. In October 2007, the veteran submitted additional evidence to the Board, accompanied by a waiver of RO consideration. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of these claims. The veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating in November 2007. It is therefore inherent in the claim that the veteran had actual knowledge of the rating element of his increased rating claim. The Board acknowledges that the notices sent to the veteran in February 2003, March 2005, and November 2007 do not meet the requirements of Vazquez-Flores and are not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, in the November 2007 notice he was told to submit evidence showing that his service-connected disorder had worsened. He was informed that this evidence may include a statement from his doctor containing the physical and clinical findings, the results of any laboratory tests or x- rays, and the dates of examinations and tests. He was also informed that he may submit statements from other individuals describing their personal observations as to how the veteran's disability has become worse. In a Dingess notice dated in November 2007, he was provided examples of evidence that may affect his disability rating including information about on-going treatment records; recent Social Security determinations; or statements from employers as to his job performance, lost time, or other information regarding how his condition affected his ability to work. In addition, the January 2005 statement of the case included the schedular criteria and diagnostic code needed to support an increased rating for the veteran's disability. Based on the evidence above, the veteran can be expected to understand from the various letters from the RO what was needed to support his increased rating claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in statements made in his February 2006 substantive appeal in which he discussed the severity of his disability and its affect on his daily life. At the October 2007 Board personal hearing, the veteran was specifically asked about, and testified regarding, symptoms noted in the rating criteria associated with his service-connected gastric ulcer disease, including pain, weight loss (gain), general impairment of health, anemia, vomiting, and hematemesis. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. For these reasons, the Board finds that adequate notice was provided to the appellant prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the statutes and regulations require that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA-authorized medical records; and, (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes (1) a current disability or persistent or recurrent symptoms of a disability, (2) an in-service event, injury, or disease, (3) current disability may be associated with the in-service event, and (4) there is insufficient evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. With respect to the service connection claim, the Board finds that VA is not obligated to provide an examination in this case because the evidence does not establish that the veteran suffered an event, injury, or disease in service. With respect to the increased rating claim, the Board finds that there is competent medical evidence of record sufficient to decide the claim. 38 C.F.R. § 3.159(c)(4). Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. In sum, the Board finds the duty to assist and duty to notify provisions have been fulfilled and no further action is necessary under those provisions. Increased Rating for Gastric Ulcer Disease Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's service-connected gastric ulcer disease was rated 40 percent disabling under Diagnostic Code 7304. Under Diagnostic Code 7304, a 40 percent evaluation rating is warranted for moderately severe symptoms, with less than severe symptoms but with impairment of health manifested by anemia and weight less or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating is warranted for severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114. Weight loss is a criterion for a disability rating higher than currently assigned for the veteran's gastrointestinal disorder under Diagnostic Code 7304. For purposes of evaluating conditions in Section 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained over three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. See 38 C.F.R. § 4.112 (2007). Private medical records dated in January 2003 reflect the veteran's complaints of flatulence, diarrhea and a change in bowel habits for which he underwent an operation that same month. He weighed 163 pounds. The veteran underwent a VA examination in April 2003. He was 155 pounds. The examiner indicated that the veteran had been suffering from a gastric ulcer since 1994, a condition that affects body weight from 180 pounds to 155 pounds within a five month period. He did not receive any treatment to correct his weight change. He complained of nausea and vomiting up to two times per day, usually brought on by certain foods or smells. He had constant stomach pain similar to hunger pains in the middle of his stomach. Ulcer treatment did not improve his condition. He had not vomited blood or passed any black tarry stools. He was functionally impaired by a loss of appetite, limited diet, and weight loss. After an examination, the diagnosis was gastric ulcer. The examiner reported that this condition caused significant anemia, as indicated on CBC and by malnutrition, which moderately affected the veteran's health. VA records dated in July 2004 reflect that the veteran weighed about 212 pounds. By December 2004, he weighed 217 pounds. VA medical records show that the veteran underwent an upper GI endoscopy in February 2005. The impression was Schatzki ring (acquired), retained food in the stomach; and suspect gastroparesis. VA medical records dated in March 2005 reflect that the veteran's weight was 221 pounds. It was noted that an EGD in February which showed food retention in his stomach and the presence of a Schatzki's ring. The impression was gastroparesis of an unknown etiology and dysphagia secondary to gastroesophageal reflux disease (GERD) ring. In May 2005, he underwent an upper GI endoscopy. In May 2006, the veteran's diagnoses included GERD; dyspepsia; dysphagia with improvement after dilation; chronic constipation improved; and anxiety contributes to symptoms. In November 2006, the assessment was that his GERD was controlled. The Board finds that a rating in excess of 40 percent for the veteran's service-connected gastric ulcer is not warranted for any period during the course of this appeal. The competent medical evidence shows that, while the veteran weighed only 155 pounds in April 2003 after losing 25 pounds, he consistently gained weight thereafter. While the competent medical evidence reflects some vomiting, there is no evidence of hematemesis or melena. Finally, significant anemia was documented on one occasion in April 2003. The competent medical evidence does not evidence for any period of the claim severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Therefore, the Board finds that the competent medical evidence does not support a rating greater than 40 percent for a gastric ulcer. The Board has considered whether or not the veteran is entitled to a higher rating for his gastric ulcer under any other diagnostic code. The competent medical evidence shows that the veteran has been diagnosed with GERD which is contemplated by DC 7346. 38 C.F.R. § 4.114. Under Diagnostic Code 7346, the highest rating of 60 percent is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. However, as previously discussed the competent medical evidence is negative for any evidence of hematemesis or melena. While the veteran complained of vomiting, the evidence is negative for weight loss since April 2003. As there is no evidence of other symptoms productive of severe impairment, the veteran is not entitled to a higher rating under pursuant to DC 7346. 38 C.F.R. § 4.114. Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 is not warranted. Accordingly, the Board finds that the preponderance of evidence is against the veteran's claim for an increased rating in excess of 40 percent for the service-connected gastric ulcer disease, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Withdrawal of Issue of Service Connection for Colon Problems A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2007). Withdrawal may be made by the appellant or by his authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (2007). In February 2006, the veteran submitted a VA Form 9 perfecting his appeal as to the issue of entitlement to service connection for colon problems, as identified in the January 2005 statement of the case. At his October 2007 personal hearing before the Board, the veteran stated that he was withdrawing the appeal as to the issue of entitlement to service connection for colon problems. The Board finds that the veteran's statement indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. Tomlin v. Brown, 5 Vet. App. 355 (1993) (a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a Notice of Disagreement within the meaning of 38 U.S.C. § 7105(b)). As the appellant has withdrawn his appeal as to the issue of entitlement to service connection for colon problems, there remain no allegations of errors of fact or law for appellate consideration concerning this issue. The Board therefore has no jurisdiction to review the issue. Accordingly, the issue of entitlement to service connection for colon problems is dismissed. Service Connection for Klinefelter's Syndrome A claimant with active service may be granted service connection for a disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. The disease entity for which service connection is sought must be chronic as opposed to merely acute and transitory in nature. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Congenital or developmental defects and refractive errors of the eye as such are not diseases within the meaning of the applicable legislation and are thus not subject to service connection. 38 C.F.R. § 3.303(c) (2007). The veteran's service medical records show diagnoses of Klinefelter's syndrome and hypogonadism. Post-service medical records show treatment of Klinefelter's syndrome which includes testosterone injections. Klinefelter's syndrome is a condition due to a chromosomal abnormality that has manifestations including infertility and absence of sperm. See Dorland's Illustrated Medical Dictionary, p. 1637 (27th edition 1988). Klinefelter's syndrome is a chromosomal abnormality, a congenital abnormity for which service connection cannot be granted and compensation may not be paid. See 38 C.F.R. § 3.303(c). The Board recognizes the veteran's contentions as to the diagnosis and relationship between his service and the claimed disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced at any time. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, his assertions do not constitute competent medical evidence that his Klinefelter's syndrome is other than a congenital abnormality for which service connection may not be granted. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for Klinefelter's syndrome, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A disability rating in excess of 40 percent for service- connected gastric ulcer, for any period of the increased rating claim, is denied. The appeal concerning the issue of entitlement to service connection for colon problems is dismissed. Service connection for Klinefelter's Syndrome is denied. REMAND VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development. As an initial matter, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held in part that VA's duty to notify a claimant seeking an increased evaluation included advising the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Although notification letters dated in February 2003 and March 2005 were issued in this matter as pertains to the claim for increased rating for idiopathic seizures, they do not comply with the Vazquez-Flores ruling. The veteran was not notified of any of the information required by Vazquez- Flores. The veteran contends that his seizure disorder is worse than the current rating of 10 percent reflects. The veteran's service-connected seizures with head trauma are assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 8910 (2007). The veteran contends that his symptomology is worse than is contemplated under a 10 percent disability rating, and that a higher rating should be assigned. Under Diagnostic Code 8910, both the frequency and type of seizure a veteran experiences are considered in determining the appropriate rating evaluation. A 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is assigned when there has been at least one major seizure in the last two years or at least 2 minor seizures in the last 6 months. Assignment of a 40 percent rating is warranted when there is at least one major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. Assignment of a 60 percent rating is warranted when there is an average of at least one major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. An 80 percent evaluation is warranted when there is an average of at least one major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent evaluation is warranted when there is an average of one major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8910 (2007). During a VA psychiatric consultation in December 2004, the veteran indicated that he could not work due to his seizure disorder, had given up his driver's license in December 2004, and that his seizure disorder was not well-controlled. VA medical records dated in August 2006 reflect that the veteran reported two seizures. However, it was felt that the seizures seemed to be non-epileptic. A November 2006 neurology clinic record shows that he had three starring episodes each week between January 2006 and September 2006. However, EEG monitoring was negative for any epileptiform activity during these events. The physician noted that neuropsychological evaluation and psychotherapy may be useful for evaluation non-epileptic seizures. At the October 2007 hearing before the Board, the veteran testified that he experiences tingling in his extremities and hand shakes that occur four times a week. He also complained of numbness in his lower extremities and had a recent fall down the stairs. While the veteran was afforded a VA examination in May 2003, the veteran should be afforded a VA neurological examination to determine the current nature and extent of his service- connected seizure disorder. 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, 284 (1993). For these reasons, the Board determines that a remand is required for further development of the record, including a VA neurological examination to determine the current nature and extent of the service-connected seizure disorder. With regard to the issue of service connection for a psychiatric disorder that includes depression, the veteran contends that he currently has depression which is related to his service or his service-connected seizure disability. The veteran's service medical records show extensive psychiatric treatment during his active duty service from October 1986 to August 1996. Service medical records include a February 1986 enlistment examination report that reflects a normal psychiatric evaluation. In October 1988, the veteran's supervisor took him to a mental health clinic following an evening of drinking during which the veteran had expressed suicidal thoughts. He also reported a decreased mood with increased irritability following a seizure seven months ago. The assessment was Axis I rule out (r/o) major depression , and r/o anxiety disorder NOS (not otherwise specified). Another October 1988 report during service shows an assessment of adjustment disorder with depressed mood-o/c (obsessive compulsive) features. In March 1989, there was no Axis I diagnosis but the Axis II diagnosis was o/c features. An October 1992 clinical note reflects that the veteran had additional conflict with his supervisor; the assessment was Axis I occupational problem. During service in March 1995, the Axis I diagnosis was to rule out personality change due to seizure disorder, to rule out mood disorder due to seizure disorder, to rule out psychotic disorder due to seizure disorder, major depressive d/o (MDD), and delusional disorder. A physician opined that the veteran's seizure disorder could have contributed to his psychiatric presentation. In April 1995, the diagnoses were to rule out personality change due to medical condition, to rule out mood change due to condition, and to rule out major depression. Service medical records dated in May 1995 reflect diagnoses of depressed mood; and dysphoric affect, appropriate, non- labile. In June 1995, the diagnoses were r/o adjustment d/o, and depressed and anxious mood. In August 1995, the diagnoses were adjustment disorder with depressed mood and avoidant traits. During service in December 1995, the diagnosis was adjustment disorder with depressed mood. Records dated in January 1996 to May 1996 show a diagnosis of adjustment disorder with depressed mood. Still during service in August 1996, the diagnoses were adjustment disorder with depressed mood, and occupational problems. After service, VA medical records include an April 2000 report that shows a diagnosis of depression, improved. VA psychiatry records dated in April 2004 show that the veteran complained of domestic problems and was upset with the Air Force because of the way they treated him. He was diagnosed with post-traumatic stress disorder (PTSD); obsessive- compulsive disorder (OCD) per history; and depression NOS. In December 2004, the veteran underwent a VA psychiatry consultation during which he complained of domestic problems and depression which he related to his service and childhood. The diagnoses were severe major depressive disorder (MDD); personality disorder NOS; and marital conflict. In January 2005, the veteran was diagnosed with recurrent major depression and recurrent moderate major depressive disorder. In May 2006, he had to stop taking his seizure medication due to problems with his mood and anger. The evidence of record at this time does not delineate whether or not the veteran's claimed depression is related to his domestic problems, his active duty service, including extensive psychiatric symptoms and diagnosed disorders in service, or to any service-connected disability. Therefore, the Board finds that additional VA examination and medical opinion is needed to determine whether any current psychiatric disability is related to the veteran's service or is secondary to his service-connected disabilities. Accordingly, the issues of increased rating for a seizure disorder and service connection for depression are REMANDED for the following action: 1. Advise the veteran of what evidence would substantiate his claim for an increased rating in excess of 10 percent for the service-connected seizure disorder. Apart from other requirements applicable under the Veterans Claims Assistance Act (VCAA), the RO/AMC will comply with the Vazquez- Flores ruling, and advise the veteran to submit evidence that his condition has worsened, including the effect an increased worsening of his condition has on employment and daily life, and provide notice of the criteria necessary under the appropriate Diagnostic Code(s) to establish entitlement to an increased rating. In so doing, the RO/AMC will comply with any directives of the Veterans Benefits Administration. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). 2. Schedule the veteran for the appropriate VA examination to determine the current nature and extent of his service-connected seizure disorder. The claims file should be made available to the examiner and the examination report should reflect that the claims file was reviewed. The examiner should indicate what, if any, seizures the veteran experiences, identifying the seizures as major or minor, and indicate the frequency of the identified seizures, as well as indicating the most recent occurrence of any major seizure. 3. Schedule the veteran for the appropriate VA examination to determine the nature and etiology of any psychiatric disorder(s). The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. The review should be indicated in the examination report. Specifically, the examiner should provide the following opinion: a) Diagnose any psychiatric disability. b) Is it as likely as not (50 percent probability or greater) that the veteran's currently diagnosed psychiatric disability is due to or is the result of his service, service- connected gastric ulcer, or service- connected idiopathic seizure disorder? 4. Once all of the above-requested development has been completed, the veteran's claims for an increased rating for seizures and for service connection for depression must be readjudicated. If any of the claims remain denied, the veteran and his representative must be provided with an appropriate supplemental statement of the case, and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. 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). The veteran is hereby informed of the importance of appearing and participating fully in any scheduled VA examinations, and that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). These claims 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.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs