Citation Nr: 1300423 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-47 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left eye disorder. 2. Entitlement to a compensable evaluation for a history of conversion reaction. 3. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1953 to April 1955. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which, in part, declined to reopen the Veteran's claim for service connection for defective vision of the left eye, and continued a noncompensable evaluation for a history of conversion reaction. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The evidence reflects that the Veteran asserts he stopped working due at least in part to his service-connected psychiatric disability. See e.g. June 2009 VA examination report. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of the pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The Board notes that in his April 2008 claim, the Veteran sought service connection for "eyes condition." However, only the left eye has been adjudicated. Accordingly, the issue of entitlement to service connection for a right eye disability 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 it, and it is REFERRED to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As to the claim for whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left eye disorder, the Board observes that in a November 1959 decision, the Board denied service connection for a left eye disorder, claimed as loss of vision, finding that the pre-existing left eye condition was not aggravated in service. Subsequently, in April 1960, the RO declined to reopen the claim for service connection for a left eye disorder. Pursuant to the Veteran's petition to reopen his claim for service connection for a left eye disorder, the RO sent him a notification letter in compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and Kent v. Nicholson, 20 Vet. App. 1 (2006). In the context of a new and material evidence claim, the United States Court of Appeals for Veterans Claims (Court) requires that VA, by way of a specific notice letter, (1) notify the claimant of the evidence and information necessary to reopen the claim, (i.e., describe what new and material evidence is); (2) notify the claimant of the evidence and information necessary to substantiate each element of the underlying service connection claim; and (3) notify the claimant of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits. Kent v. Nicholson, 20 Vet. App. 1 (2006). In an April 2008 letter, the RO mistakenly referenced an October 1983 rating decision, rather than the April 1960 rating decision, as the last final rating decision. Additionally, the RO also provided a generic reason (disorder was not incurred in nor caused by service) for the basis of the previous denial, rather than the specific reason cited herein. Therefore, on remand, the Veteran must be issued a notification letter for his claim to reopen service connection for a left eye disorder which addresses the last final rating decision in April 1960 and cites to the correct basis for the denial. Furthermore, the April 2008 letter did not address how to substantiate the claim for a compensable evaluation for a history of conversion reaction, and on remand the Veteran must be sent a notification letter for this claim. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last afforded an examination for his service-connected psychiatric disorder in June 2009. In its March 2010 informal hearing presentation, the Veteran's representative indicated that the Veteran's service-connected psychiatric disorder was worsening in severity. In addition, a VA medical record of July 2009 included a lower GAF score of 75 than the score of 85 which was provided at the time of the VA examination. While the passage of time does not necessarily require that an updated VA examination be conducted, the Board notes that because the Veteran and his representative are contending that his symptoms have worsened since he was last evaluated an updated examination is warranted. See VAOPGCPREC 1-95 (April 7, 1995); Francisco v. Brown, 7 Vet. App. 55 (1994) (noting that where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern). Accordingly, the Board finds that a contemporaneous VA medical examination is warranted for service-connected history of conversion reaction. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In addition, the record reflects that the Veteran has continued to receive treatment from the VA Medical Center. As this matter is being returned for additional development, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Board notes that since it has just determined that a claim for a TDIU is part of the pending increased rating claim, the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Therefore, on remand, he should be sent an appropriate notification letter and he should be requested to complete a claim form. A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran is service-connected for fracture of the right clavicle with residual impingement syndrome and limited range of motion, evaluated as 30 percent disabling; right shoulder scar, evaluated as 10 percent disabling; abdomen scar, evaluated as noncompensable; laparotomy, evaluated as noncompensable; history of conversion reaction, evaluated as noncompensable; and traumatic brain injury, evaluated as noncompensable. Therefore, he does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2012). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2012). The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Veteran has not yet been afforded an examination to determine whether he is unemployable due to his service-connected disabilities and should be afforded such an examination on remand. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Review the claims folder and ensure that all notification and development action required by the VCAA are fully complied with and satisfied. Specifically: (a) Notify the Veteran of the information and evidence necessary to substantiate his claim to reopen a claim of entitlement to service connection for a left eye disorder, a compensable evaluation for a history of conversion reaction, and a TDIU; (b) Notify the Veteran of the information and evidence he is responsible for providing; (c) Provide the Veteran with an explanation as to the information or evidence needed to establish disability ratings and effective dates for his claims; (d) Notify the Veteran of the evidence and information necessary to reopen the claim for service connection for a left eye disorder; (e) Notify the Veteran of the reasons for the April 1960 denial of his claim for service connection for a left eye disorder; and (f) Notify the Veteran of what specific evidence would be required to substantiate the element or elements needed to grant his claim for service connection for a left eye disorder as outlined by the Court in Kent, supra. (g) Request that the Veteran complete and return a TDIU claim form. 2. Obtain all relevant outstanding VA Medical Center treatment records. All attempts to locate these records must be documented in the claims folder. 3. Schedule the Veteran for a psychiatric examination in order to determine the severity of his service-connected history of conversion reaction. The examiner should describe the Veteran's symptoms, and note the impact, if any, of the Veteran's disorder on his social and industrial functioning. The examination report must include a complete rationale for all opinions and conclusions reached. 4. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The examiner must review the claims folder, and the examination report must reflect that such a review was undertaken. The examiner should offer an opinion as to whether it is as likely as not (a 50 percent or greater probability) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities (i.e., fracture of the right clavicle with residual impingement syndrome and limited range of motion, evaluated as 30 percent disabling; right shoulder scar, evaluated as 10 percent disabling; abdomen scar, evaluated as noncompensable; laparotomy, evaluated as noncompensable; history of conversion reaction, evaluated as noncompensable; and traumatic brain injury, evaluated as noncompensable). If the Veteran's service-connected disabilities do not render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examination report must include a complete rationale for all opinions and conclusions reached. 5. Thereafter, readjudicate the Veteran's claims as to whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left eye disorder, entitlement to a compensable evaluation for a history of conversion reaction, and a TDIU, to include consideration of whether the issue should be submitted to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 4.16(b). If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an appropriate period of time in which to respond before the case is returned to the Board. The Veteran 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. 2012). _________________________________________________ S.S. TOTH 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) (2012).