Citation Nr: 1300437 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-34 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss. 2. Entitlement to an increased disability evaluation for service-connected bipolar disorder and generalized anxiety disorder (formerly characterized as anxiety reaction), currently rated as 50 percent disabling. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to February 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which continued an evaluation of 10 percent for the Veteran's anxiety disorder. In a December 2010 decision, the RO granted a 50 percent evaluation for the Veteran's psychiatric disabilities effective July 2, 2008. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation and his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board notes that the issue of entitlement to service connection for tinnitus is no longer before the Board as it was granted by the RO in a December 2010 decision. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for an increased evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. During the December 2010 Compensation and Pension examination, the Veteran asserted that his unemployment was due to his mental disorder. He explained that he had recurring problems with conflict with co-workers, and has lost employment due to conflicts with supervisors and co-workers. In light of the holding in Rice, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. The issue of entitlement to an increased disability evaluation for service-connected bipolar disorder and generalized anxiety disorder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran in this case served on active duty from June 1977 to February 1983. 2. On December 30, 2009, prior to the promulgation of a decision in the appeal, the RO received notification from the appellant through his authorized representative, that a withdrawal of the appeal of a compensable evaluation for bilateral hearing loss was requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant's authorized representative have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, through his authorized representative, has withdrawn the appeal of a compensable evaluation for bilateral hearing loss in a December 2009 statement, and, hence, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. ORDER The appeal of the denial of a compensable evaluation for bilateral hearing loss is dismissed. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issues on appeal must be remanded for further evidentiary development. The issue of TDIU has been reasonably raised by the record during a December 2010 examination. Crucially, as noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In that connection, the issue of entitlement to TDIU should be adjudicated by the AOJ in light of the Court's decision in Rice. 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). Service connection has been awarded for the Veteran's psychiatric disability, hypothyroidism, tinnitus, residuals of back injury, bilateral hearing loss, status post left scrotal mass excision, mild acne and hyperthyroidism. In light of the above, the Board finds that the Veteran requires a current VA examination to ascertain whether unemployability due to service-connected disability is demonstrated. Furthermore, the Board observes that the TDIU claim is inextricably intertwined with his increased evaluation claim for a psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Therefore, the Board is unable to adjudicate the claim for an increase evaluation for his psychiatric disability at this time. An October 2009 VA treatment record notes that the Veteran discussed VA vocational assistance with his psychologist and stated that he hoped that it "might come through". This statement indicates that the Veteran may have applied for vocational rehabilitation. The vocational rehabilitation folder is not included in the claims file or on Virtual VA. As the Veteran's vocational rehabilitation records might contain evidence discussing the severity of his psychiatric disability and its effect, if any, on his occupational functioning, they are relevant to the claim on appeal. VA has an obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to associate all relevant records in VA's possession, as well as all relevant records from private healthcare providers, with the claims file of a Veteran. 38 C.F.R. § 3.159 (2012). As such, the issues on appeal must be remanded in order to obtain possible vocational rehabilitation records. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA vocational rehabilitation training and education (VRT) records pertaining to the Veteran. All efforts to obtain these records should be fully documented, and a negative response should be provided if no records exist. The Veteran should also be notified if these records do not exist and/or are unobtainable pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Send the Veteran an application for unemployability and a VCAA compliant notice letter informing him of the criteria necessary to establish TDIU. Ask the Veteran to identify any additional, relevant private or VA treatment records that he wants VA to help him obtain. Take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include updated VA treatment records, if in existence. Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. 3. Schedule the Veteran for a psychiatric examination by an appropriate VA examiner who should review the Veteran's VA claims folder. The examiner should provide a description of the current nature and extent of the Veteran's service-connected psychiatric disability. The examiner should provide an explanation of how the disability impacts the Veteran's in his daily activities, including its effect of the Veteran's ability to secure and follow a substantially gainful occupation. The examiner should obtain a complete occupational history from the Veteran, if possible. The examiner s asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected psychiatric disability, alone, renders him incapable of securing and maintaining substantially gainful employment. A complete rationale must be provided for any opinion expressed. The examiner should provide an explanation of how the disability impacts the Veteran in his daily activities, including its effect of the Veteran's ability to secure and follow a substantially gainful occupation. 4. Schedule the Veteran for a medical examination by an appropriate VA examiner who should review the Veteran's VA claims folder. The examiner should provide an opinion whether any of the Veteran's service-connected individual disabilities render him unable to follow substantially gainful employment, or whether the disabilities in combination render him unable to follow substantially gainful employment. The examiner should fully explain any opinion provided. 5. The Veteran is hereby notified that it is his responsibility to report for any and all scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Following the completion of the foregoing, and undertaking any other development it deems necessary, review the record and adjudicate the Veteran's claim a higher evaluation for a psychiatric disability and his TDIU claim. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued an appropriate SSOC, and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, 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). 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). _________________________________________________ MICHAEL A. PAPPAS 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).