Citation Nr: 1014971 Decision Date: 04/20/10 Archive Date: 04/30/10 DOCKET NO. 09-06 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE 1. Entitlement to an evaluation in excess of 30 percent for adjustment disorder with bipolar disorder. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The Veteran had active service from September 1998 to May 2000. These claims come before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that increased the evaluation for the Veteran's psychiatric disability from 10 to 30 percent. The appeal is REMANED to the RO via the Appeals Management Center in Washington DC. The Veteran will be advised if further action is required on his part. REMAND The Veteran's most recent VA examination was in February 2007. The examiner did not have access to subsequently received records of private hospitalization. In December 2007, the Veteran submitted an application for TDIU in which he reported that he had been fired from his employment in December 2007. He related that the firing had been due to hospitalization, apparently for treatment of the service connected psychiatric disability. The Veteran's reports of additional hospitalization and loss of employment since the last examination, suggest that the disability has worsened. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran did not report the location of his December 2007 hospitalization. VA has a duty to obtain only records that are adequately identified. 38 U.S.C.A. § 5103A(b) (West 2002). VA, however, has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2009). Most of the Veteran's previous psychiatric treatment has taken place at private facilities. Since becoming aware of the reported hospitalization, it does not appear that VA has followed the procedures outlined in 38 C.F.R. § 3.159(e)(2). The Veteran's TDIU claim is an element of his claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The agency of original jurisdiction has not yet adjudicated the TDIU claim. Based on the foregoing, the Board REMANDS this case for the following action: 1. Ask the Veteran to provide information and any necessary releases to obtain records of all psychiatric treatment since January 2007. Tell the Veteran that if he does not provide the necessary releases, he should submit records of the treatment himself. 2. Take the necessary steps to obtain records of the treatment adequately identified by the Veteran and for which necessary authorization has been provided. 3. Afford the Veteran a VA psychiatric examination to determine the current severity of the service connected psychiatric disability. The claims folder should be reviewed, and such review should be acknowledged in the examination report or addendum. The examination report should conform to the C&P worksheet for mental disorder exams included in the Compensation and Pension physician's guide, and include a global assessment of function score. See http://vaww4.va.gov/cpep/cguide/ch13/ch13_ wi01.htm. The examiner should provide a specific opinion as to whether the psychiatric disability would prevent the Veteran from obtaining and maintaining employment for which he would otherwise be qualified, and provide a rationale for this opinion. 4. Adjudicate the Veteran's TDIU claim. 5. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration, if in order. The Veteran has the right to submit additional evidence and argument on the remanded claim. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that this claim be afforded expeditious treatment. 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 2002) (Historical and Statutory Notes) (providing that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).