Citation Nr: 1102986 Decision Date: 01/24/11 Archive Date: 02/01/11 DOCKET NO. 04-00 191A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a psychiatric disability, including posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to a disability rating in excess of 40 percent for service-connected cystitis, prior to December 22, 2006. 3. Entitlement to a disability rating in excess of 60 percent for service-connected cystitis, from December 22, 2006. 4. Entitlement to an effective date earlier than April 28, 2006, for the grant of an increased disability rating for service- connected cystitis. 5. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to November 1975. This matter comes to the Board of Veterans' Appeals (Board) from adverse rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A May 2002 RO rating decision denied entitlement to service connection for PTSD. A notice of disagreement (NOD) was filed in February 2003, a statement of the case (SOC) was issued in January 2004, and a substantive appeal was received in January 2004. The Veteran testified at an August 2006 RO hearing with regard to this issue. A January 2006 RO rating decision denied entitlement to service connection for depression. An NOD was filed in April 2006, an SOC was issued in April 2006, and a substantive appeal was received in May 2006. In accordance with the U.S. Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue of service connection for psychiatric disability has been recharacterized to encompass all psychiatric disabilities diagnosed. An August 2006 RO rating decision assigned a 40 percent disability rating for service-connected cystitis, effective April 28, 2006. In January 2007, an NOD was filed with regard to the effective date assigned and, in March 2007, an NOD was filed with regard to the disability rating assigned. In June 2007, an SOC was issued which addressed the increased rating and earlier effective date claims. In July 2007, a substantive appeal was received with regard to both issues. An August 2007 RO rating decision assigned a 60 percent disability rating for cystitis, effective December 22, 2006. The Veteran testified at a Board hearing in July 2008. The hearing transcript is associated with the claims folder. In October 2008, the Board remanded the issues identified above for further evidentiary development. As addressed in the remand following this decision, a claim of entitlement to TDIU is also found to be properly before the Board at this time. The issue of entitlement to service connection for cystocele has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim which is referred to the AOJ for appropriate action. The issues of entitlement to service connection for psychiatric disability, to include PTSD and depression, as well as entitlement to TDIU, 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. For the time period prior to December 22, 2006, the Veteran's service-connected cystitis was primarily manifested by urinary leakage requiring the use of 3 absorbent pads or less per day and was not shown to result in daytime voiding interval less than one hour, awakening to void five or more times per night or urinary retention requiring intermittent or continuous catheterization. 2. For the time period since December 22, 2006, the Veteran's service-connected cystitis has been primarily manifested by urinary leakage requiring the use of more than 4 absorbent pads per day. 3. An October 1981 Board decision denied a claim of entitlement to a compensable rating for cystitis. 4. The Veteran next filed a claim for an increased rating for service-connected cystitis on April 28, 2006; there are no interim formal or informal applications for an increased rating since the final October 1981 Board decision. 5. An increase in disability resulting for service-connected cystitis is not factually ascertainable as occurring within one year from the date of the increased rating claim filed on April 28, 2006. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for service-connected cystitis, prior to December 22, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7512 (2010). 2. The criteria for entitlement to a disability rating in excess of 60 percent for service-connected cystitis, from December 22, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.7, 4.115a, 4.115b, Diagnostic Code 7512 (2010). 3. The criteria for entitlement to an effective date earlier than April 28, 2006, for the grant of an increased disability rating for service-connected cystitis have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.105, 3.155, 3.157, 3.400(o)(2) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. See generally 38 U.S.C.A. § 5110(b)(2). The Veteran's service-connected cystitis is rated under DC 7512, which evaluates chronic cystitis, including interstitial and all etiologies, infectious and non-infectious. The regulation directs that disabilities rated under this code should be rated as voiding dysfunction. Voiding dysfunction should be rated as urine leakage, urinary frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Urine leakage requiring the wearing of absorbent materials which must be changed less than two times per day warrants a 20 percent disability rating. A 40 percent rating is warranted for the required requiring wearing of absorbent materials which must be changed two to four times a day warrants. The maximum 60 percent rating is warranted where urine leakage requires the wearing of absorbent materials which must be changed more than four times a day. Id. Urinary frequency resulting in daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent rating, and urinary frequency resulting in daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent rating. Id. The maximum schedular rating allowable for obstructed voiding is 30 percent. Id. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. An increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). The term "application," while not defined in the statute, is broadly construed by regulation to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. §§ 3.157(b)(1)-(b)(3). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998). In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Appellate review of a rating decision is initiated by an NOD and completed substantive appeal after an SOC has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). In Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that when a rating decision is final, only a request for a revision premised on CUE could result in the assignment of earlier effective date. A freestanding claim for an earlier effective date, once the appeal becomes final, attempts to vitiate the rule of finality. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Historically, the Veteran was treated for recurrent cystitis during active duty service. A March 1978 VA Compensation and Pension (C&P) examination report reflected the Veteran's report of periodic bladder infections. A May 1979 RO rating decision granted service connection for recurrent cystitis, and assigned an initial noncompensable disability evaluation. The Veteran appealed this determination to the Board. In a decision dated October 1981, the Board denied the Veteran's claim for a compensable evaluation for cystitis. That decision is final. 38 U.S.C.A. §§ 7104, 7105. In pertinent part, the Veteran's VA clinical records include a September 1998 VA inpatient treatment record which noted the Veteran's treatment for urinary tract infection. In April 2001, the Veteran complained of urge and stress incontinence. In May 2001, she described occasional incontinence. Notations in September 2001 and April 2002 report that the Veteran had a history of stress incontinence/urge. The record includes a January 2003 statement from the Veteran which alluded to VA treatment in 1998 for overreactive bladder. She did not express an intent to raise a claim for an increased rating. The Veteran formally raised a claim for an increased rating for cystitis by means of a written document dated April 28, 2006. This document has been accepted by the RO as constituting the application for benefits supporting the effective date of award assigned. A May 10, 2006 VA gynecology examination noted that the Veteran had a recent urinary tract infection with pelvic pain, urgency and diminished urine output. Examination demonstrated mixed incontinence, mild cystocele, and vaginal bleeding. In a May 2006 statement, the Veteran indicated that she had been diagnosed with a cystocele which she self-described as a protrusion into the vagina of a portion of the urinary bladder. She reported that this condition resulted in frequent bladder infections and recurring cysts. The Veteran described two recent treatments for infections which required medication for control. The Veteran did not mention using pads due to urinary leakage. The Veteran underwent VA C&P examination in June 2006. At that time, the Veteran reported a history of recurrent bladder infections since service. The Veteran had daytime frequency as often as twice an hour with dysuria, urgency, suprapubic pain and pressure, urinary incontinence requiring the use of two to three pads, and bedwetting at night. She had incontinence with coughing, sneezing and other times without warning. She had not required catheterization, dilatation, or drainage procedures. The examiner provided an impression of chronic cystitis with recurrent urinary tract infections, urinary incontinence requiring 2-3 pads per day, and symptoms not corrected by medical therapy. A June 2006 VA urology consultation included the Veteran's report of a worsening of incontinence "over the last 2-3 months." She also had an urge component. The Veteran had been prescribed Detrol, but there was no mention of pad use. Examination was significant for stress incontinence with valsalva and cough. There was no cystocele. The examiner assessed mixed incontinence. A July 2006 VA urology consultation noted the Veteran's report of a constant urge to void. Her leakage occurred more with urinary incontinence (UI) rather than stress urinary incontinence (SUI). The examiner assessed UI, SUI, recurrent urinary tract infections (UTI), microhematuria and history (hx) of tobacco use. She reported frequent small voids requiring pads. A December 22, 2006 VA urology consultation included the Veteran's report of stress and urge incontinence requiring up to 6 pads per day. In a statement received on March 28, 2007, the Veteran reported that she was "now using 6-8 pads per day" for her urinary incontinence. An April 2008 VA prescription record indicated that the Veteran had been prescribed 168 absorbent pads for a 30 day period which translates to between 5 to 6 pads per day. A July 2008 VA urology consultation indicated that the Veteran manifested mixed urge and stress incontinence with documented urethral hypermobility but no evidence of pelvic organ prolapse. The Veteran's urge incontinence was deemed well controlled with Detrol. The Veteran predominantly complained of leakage with coughing, sneezing or straining requiring the use of 6 pads per day. During her July 2008 testimony before the Board, the Veteran testified that her urinary incontinence symptoms began in approximately 2005. She stated that most of her history of cystitis was only shared with Dr. K of either Kaiser Permanente or Women's General. She generally testified to having the "same symptoms" in 2005. An August 2008 VA clinical record noted that the Veteran had urinary leakage of requiring use of up to 6-8 pads per day. She was contemplating bladder sling surgery. Applying the criteria to the facts of this case, the Board finds that the criteria for a rating greater than 40 percent for the time period prior to December 22, 2006 have not been met for any period of time. In this respect, the credible lay and medical evidence established that, for the time period prior to December 22, 2006, the Veteran's service-connected cystitis was primarily manifested by urinary leakage requiring the use of 3 absorbent pads or less per day and was not shown to result in daytime voiding interval less than one hour, awakening to void five or more times per night or urinary retention requiring intermittent or continuous catheterization. The Veteran first reported the use of pads for urinary stress incontinence on VA C&P examination in June 2006. At this time, she reported using 2 to 3 pads per day due to urinary incontinence. The RO awarded a 40 percent rating for voiding dysfunction based solely on the Veteran's lay report of absorbent pad usage. However, for the time period prior to December 22, 2006, the VA clinical records and Veteran's statements do not reflect any evidence or allegations that the Veteran's cystitis required the use of absorbent materials of at least 4 times per day. The Veteran described bedwetting, but there was no lay or medical evidence describing the Veteran awakening to void five or more times per night. She reported daytime frequency as "often" twice per hour, but she did not report that she had a chronic daytime frequency interval of less than one hour. Moreover, the medical records did not reflect that the Veteran manifested voiding obstruction requiring intermittent or continuous catheterization. In fact, the Veteran specifically denied any history of catheterization during at the June 2006 VA C&P examination. At her hearing in July 2008, the Veteran vaguely testified that the findings which led to her 60 percent rating have been generally the "same" since 2005. This statement, however, is not consistent with the Veteran's report of symptomatology to her treating physicians and VA examiners. For example, the Veteran reported to her treating urologist in June 2006 that she noticed a worsening of incontinence "over the last 2-3 months." At that time, she had required 2-3 pads per day during that time period. Overall, the Board places greater probative value to the Veteran's description of symptomatology to the VA examiner in June 2006 which is very specific in nature regarding the frequency of use of absorbent materials than her vague recollections of times past made at the July 2008 hearing. The Board next finds that, for the time period since December 22, 2006, the Veteran is not entitled to a rating greater than 60 percent for her service-connected cystitis. At a December 22, 2006 VA urology consultation, the Veteran reported that her stress and urge incontinence required up to 6 pads per day. The RO awarded a 60 percent rating for voiding dysfunction based solely on the Veteran's lay report of absorbent pad usage. This is the maximum schedular rating for cystitis under DC 7512. Notably, at the December 22, 2006 VA urology consultation, the Veteran did not describe "when" she began to use up to 6 pads per day. There is no credible and reliable lay or medical evidence of record indicating that the Veteran used more than 4 pads per day prior to December 22, 2006. Again, the Board notes that Veteran's testimony that her disability has been the same since approximately 2005, but her own statements in June 2006 established that she was using 2 to 3 pads per day due to urinary incontinence. Thus, it cannot be factually ascertained that the reported increased use of absorbent pads began prior to December 22, 2006. The Veteran has complained of recurrent urinary tract infections, which are not part of the criteria for evaluating service- connected cystitis under DC 7512. Notably, the Veteran's urinary tract infections have not resulted in long-term therapy, hospitalizations, intermittent intensive management or renal dysfunction. As such, there is no basis to separately evaluate this aspect of disability. See 38 C.F.R. § 4.115a. As the Veteran is in receipt of the maximum schedular rating for her cystitis, the Board must specifically consider whether extra- schedular consideration under the provisions of 38 C.F.R. § 3.321(b) is warranted in this case. See Moyer v. Derwinski, 2 Vet. App. 289 (1992) (VA must consider the provisions of 38 C.F.R. § 3.321(b) when a claimant is in receipt of the maximum schedular evaluation). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2009). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where 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). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disability at issue. The Board acknowledges that the Veteran has testified that she receives Social Security benefits because of disability. However, the records from Social Security show that it is based on mental disability and chronic bronchitis. The multiple treatment reports for the service- connected cystitis have been described above and the symptoms therein are adequately encompassed in the applicable Diagnostic Codes. In short, the rating criteria contemplate not only the symptoms but the severity of the cumulative disability. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of the service-connected disability. See 38 U.S.C.A. § 1155 (West 2002) (Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity). For these reasons, referral for extraschedular consideration is not warranted. The Board finally finds that the criteria for an effective date prior to April 28, 2006 for the award of a 40 percent rating for cystitis have not been met. As noted above, a final October 1981 Board decision denied a claim of entitlement to a compensable rating for cystitis. This decision cannot be revisited absent a CUE claim, which has not been raised. The Veteran next filed a claim for an increased rating for service-connected cystitis on April 28, 2006, which forms the basis for the effective date of award assigned by the RO. On review of the record, the Board finds that there are no interim formal or informal applications for an increased rating filed since the final October 1981 Board decision. The Board has also carefully reviewed the Veteran's VA clinical records between the time period from October 1981 to April 28, 2006. These records merely show that the Veteran had been treated for urinary tract infection and reported occasional incontinence. She did not report wearing absorbent materials, specifically report frequent daytime or nighttime voiding, or require any catheterizations. Thus, an informal claim for an increased rating was not reasonably raised according to the criteria of DC 7512. See 38 C.F.R. § 3.157. The Board has also reviewed the Veteran's written statement dated January 2003, but the Veteran only alluded to VA treatment 5 years previous for overreactive bladder. This statement does not constitute an informal claim as the Veteran did not demonstrate any intent to seek increased benefits. The law does allow the assignment of an effective date of award for the one year period prior to the April 28, 2006 filing provided, however, that the increase in disability occurred within that one year period. Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98. However, the Board finds that it is not factually ascertainable that an increased severity of cystitis occurred within one year of the April 28, 2006 application for increased compensation benefits. The Veteran currently alleges that the current severity of her cystitis has been about the "same" since 2005. She is certainly competent to describe the characteristics of voiding dysfunction, voiding obstruction and urinary frequency. The Veteran's awards of compensation have been solely based upon her self-reported frequency of use of absorbent materials. The Veteran's July 2008 testimony alleging that her symptoms had been the "same" since 2005 must also be considered in this regard. However, and as previously pointed out, the July 2008 testimony conflicts with her report to a VA examiner in June 2006, wherein she reported a using up to 3 pads per day, and to her VA urologist in December 2006, wherein she reported using up to 6 pads per day. In June 2006, she reported to her treating urologist that she noticed a worsening of incontinence "over the last 2-3 months." Overall, the Board's review of the evidence contemporaneous in time to the April 28, 2006 filing for an increased rating reflects the Veteran's report of occasional incontinence in 2001, and her July 2006 report of a worsening of symptoms over the last 2-3 months. Notably, the 2-3 month time frame correlates to the approximate date the Veteran filed her claim for an increased rating. This evidence, when viewed in light of the entire evidentiary record, is highly probative evidence against a finding of that her cystitis increased in severity within the one year period prior to filing the claim. On this record, the Board must find that an increase in disability resulting for service-connected cystitis is not factually ascertainable as occurring within one year from the date of increased rating claim filed on April 28, 2006. The claim for an earlier effective date of award for the 40 percent rating, therefore, cannot be awarded under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). See Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98. The appeal, therefore, is denied. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). The Veteran filed her claim for an increased rating in April 2006. A May 2006 preadjudicatory RO letter substantially complied with the generic type of notice required in this case. In this respect, the Veteran was advised of the types of evidence and/or information deemed necessary to substantiate the claim, the relative duties upon herself and VA in developing the claim, and how VA determines disability ratings and effective dates of awards. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's STRs, relevant VA clinical records, and medical and legal documents from the Social Security Administration. The Veteran has not cooperated in obtaining her medical records from Kaiser Permanente. See Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (claimant cannot wait passively for VA assistance in circumstances where claimant may or should have information in obtaining the putative evidence). Thus, absent her cooperation, VA has no further duty to obtain those records. The Veteran was last afforded VA examination to evaluate the current severity of her cystitis in June 2008. This examination report contained all findings necessary to decide the claim, and is responsive to the requirements to rate the disability. The Veteran's representative has argued for additional VA examination based upon the passage of time and an alleged worsening of disability. However, the Board has reviewed the lay and medical evidence of record since the last VA examination and finds that none of this evidence suggests an increased severity of symptoms to the extent that a higher schedular rating may still be possible. Thus, there is no duty to provide further medical examination on the cystitis claim. See VAOPGCPREC 11-95 (Apr. 7, 1995). For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of her claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The claim of entitlement to a disability rating in excess of 40 percent for service-connected cystitis, prior to December 22, 2006, is denied. The claim of entitlement to a disability rating in excess of 60 percent for service-connected cystitis, from December 22, 2006, is denied The claim of entitlement to an effective date earlier than April 28, 2006, for the grant of an increased disability rating for service-connected cystitis is denied. REMAND The Board regrets any further delay in adjudicating the claims of service connection for a psychiatric disability, to include PTSD and depression, but finds that the RO has not fully complied with the Board's October 2008 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the veteran the right to compliance with the remand orders). With respect to the PTSD claim, an issue on appeal is whether the Veteran's alleged personal and sexual assault stressors have been verified. Under 38 C.F.R. § 3.304(f)(3), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. The Board remanded this claim for medical opinion, in part, as to whether there is evidence contained in the claims folder which indicates that a personal assault occurred. See 38 C.F.R. § 3.304(f)(3). An October 2009 VA C&P examination was initially conducted without review of the claims folder. The examiner fully accepted the Veteran's accounts of in service assaults and rapes, and diagnosed military related PTSD. The claims folder was then provided to this clinician and, in an October 2009 addendum, the examiner indicated that no changes were required to the report or the conclusion reached. Unfortunately, the Board must return the October VA 2009 C&P examination report as being inadequate for rating purposes and not complying with the Board's remand directives. In this respect, the examiner did not provide any specific examples of alternative evidence tending to support the Veteran's allegations of inservice sexual assaults and rapes. Such findings and rationale are necessary to substantiate this claim, particularly considering that the details provided by the Veteran concerning the alleged PTSD stressors are inconsistent. With regard to the Veteran's claimed depression, the Board remanded this claim for examination to assess the nature and etiology of her claimed depression. The RO did not obtain an opinion on the claim, as directed by the Board. This issue, therefore, must be remanded for noncompliance with the Board's October 2008 remand directives. In this case, the Veteran has contended her unemployment is due to service-connected disability. In May 2009, the Court held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities which is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). See also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is not a free-standing claim which must be pled with specificity). It would be fundamentally unfair to the Veteran to decide a claim which has not been developed and adjudicated by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). In order to comply with precedential Court opinion, this issue, therefore, is remanded for further development. Accordingly, the case is REMANDED for the following action: 1. Take all appropriate action, including that consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), regarding the claim of entitlement to TDIU. 2. Obtain the Veteran's clinical records of VA treatment since October 2009. 3. After completion of the above, refer the Veteran's claims file to the appropriate healthcare professional in order to determine if there is evidence of behavior changes that might indicate the occurrence of an in- service stressor. In this regard, the Board notes that the Veteran provided a September 2003 statement of her stressors. The healthcare professional should review the evidence in the claims file, including the service records, and provide an opinion on whether any contemporaneous behavior changes indicate that a personal assault had been committed between 1969 and 1971. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. The report should be associated with the Veteran's claims folder. All opinions and conclusions expressed must be supported by a complete rationale in a report with discussion of any behavior change suggested by the evidence. 4. The Veteran should be scheduled for a VA examination to ascertain the nature and etiology of her claimed psychiatric disabilities. It is imperative that the claims folder, to include all service treatment records and post-service medical records, be reviewed in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether the Veteran has a psychiatric disability, and whether it is at least as likely as not (a 50% or higher degree of probability) that any current psychiatric disability is related to her active duty service or any incident therein. All opinions and conclusions expressed must be supported by a complete rationale in a report. 5. After completion of the above and any other development deemed necessary, readjudicate the claim. If any of the benefits sought on appeal are not granted, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs