Citation Nr: 1302176 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-05 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial disability rating in excess of 40 percent for service-connected chronic lumbosacral strain (also referred to as low back disorder). 2. Entitlement to service connection for residuals of human immunodeficiency virus (HIV). 3. Entitlement to service connection for a psychiatric disorder other than depression. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from November 1981 to November 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2007 rating decision in which the Department of Veterans' Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, denied a disability evaluation greater than 40 percent for the service-connected low back disorder, and denied service connection for a psychiatric disorder and for residuals of HIV. After receiving notice of that determination, the Veteran perfected a timely appeal with respect to that denial. Before the matter was transferred to the Board, and, in an August 2012 rating action, the Appeals Management Center (AMC) granted service connection for depression and rated it as 50 percent disabling, effective July 31, 2006. The Board finds that the grant of service connection for this disability constitutes a full award of the benefit sought on appeal with respect to the issue of depression. Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). In his July 2006 claim, the Veteran sought entitlement to service connection for a mental health condition broadly defined. In the July 2007 rating decision, the RO denied the Veteran's claim for service connection for a mental health condition, to include bipolar disorder and depression. Indeed, the medical evidence in this case shows diagnoses of not only bipolar disorder and depression, but also provides diagnoses of anxiety, adjustment disorder and schizoaffective disorder. Therefore, the Veteran's claim will not be limited to that which he has written on his application. Although a claimant for disability compensation who has no special medical expertise may testify as to the symptoms he can observe, he is not generally competent to provide a diagnosis that requires the application of medical expertise to the facts presented. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The agency of original jurisdiction (AOJ) should construe a claim based on the reasonable expectation of the non-expert claimant and the evidence developed in processing that claim. Clemons, 23 Vet. App. at 5. Accordingly, given the various psychiatric diagnoses shown by the evidence in this case, the Board has re-characterized the issue on appeal more broadly as one for service connection for any psychiatric disorder other than depression. In March 2011, the Board remanded the Veteran's claims for further procedural and evidentiary development. Specifically, the Board instructed the RO to (1) secure the Veteran's Social Security Administration (SSA) records; (2) obtain records of psychiatric, HIV, and low back treatment that the Veteran may have received at the Milwaukee VA Medical Center (VAMC) since November 2009; (3) schedule the Veteran for a VA psychiatric examination to determine the etiology of his psychiatric disorder; and (4) schedule the Veteran for a VA orthopedic examination to determine the extent and severity of his service-connected lumbar spine disability. The Veteran's SSA records and updated VA treatment records have since been received and associated with his claims file. In March 2011, the AMC initiated a request to have the Veteran scheduled for VA examinations for his spine and psychiatric condition. The VA psychiatric examination was completed in April 2011, and the VA spine examination was completed in May 2011. Copies of the VA examination reports have been associated with his claims file. Even though the RO has granted service connection for the Veteran's depression, the April 2011 VA examination report, which will be discussed in greater detail below, also reflected a diagnosis of bipolar disorder. Unfortunately, the Board does not find the April 2011 VA medical opinion to be adequate with respect to the Veteran's diagnosed bipolar disorder. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.) Although the Board sincerely regrets further delay, another remand with regard to the Veteran's claim seeking service connection for a psychiatric disorder other than depression is essential to ensure that the Board remand instructions are complied with and carried out prior to a final adjudication of the claim. In addition, after a thorough review of the claims file, the Board finds that further evidentiary development is also necessary prior to a final adjudication of the claims seeking service connection for HIV and an increased rating for the low back disorder. Also, the Board notes that the Veteran was afforded a VA psychiatric examination in November 2012, at which time he reported a worsening of his psychiatric symptoms. The Board is unclear whether the Veteran may have filed a notice of disagreement (NOD) with respect to the 50 percent disability rating assigned for his service-connected depression, and/or requested a higher rating for the service-connected depression. As the record is currently unclear with regard to whether the issue of entitlement to an increased (initial) rating for service-connected depression has been raised by the record, the Board refers this matter to the AOJ for appropriate action. Finally, the Board notes that the Veteran initially executed his power of attorney (POA) in favor of the Disabled American Veterans (DAV) in November 2008. There is nothing in the claims file to indicate that DAV ever withdrew as the Veteran's representative, nor is there anything to show that the Veteran dismissed DAV as his representative. However, documentation issued by the AMC was contradictory as to whether the DAV was still the Veteran's representative. The Veteran was provided with a POA clarification letter dated on December 4, 2012 and was specifically asked whether he wished to represent himself, whether he wished to appoint an accredited Veterans Service Organization (VSO) to represent him, or whether he wished to appoint a different private attorney or "agent" to represent him. In a written and signed statement, date stamped as having been received at the Board in December 2012, the Veteran indicated that he currently did not have a POA executed in favor of any organization, representative or attorney, and asked that the Board continue adjudicating him claim. Based on the statement provided, the Board concludes that the Veteran wishes to proceed with his appeal as a pro se claimant. For the reasons set forth below, the appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Preliminarily, the Board notes that additional evidence in the form of VA treatment records have been scanned into the Virtual VA Claims processing system after the issuance of the May 2012 Supplemental Statement of the Case (SSOC). These records reflect outpatient treatment for the Veteran's low back and psychiatric symptoms, as well as on-going treatment for the Veteran's HIV residuals and any health complications arising therefrom. The Veteran has not specifically stated that he was waiving consideration of the additional evidence by the AOJ. Pursuant to 38 C.F.R. § 20.1304(c), any pertinent evidence submitted by the Veteran must be referred to the AOJ for initial review, unless this procedural right is waived by the appellant or his representative, or unless the Board determines the benefit sought can be allowed on appeal without such a referral. Therefore, the Board may not properly consider this evidence or issue a decision at this time, and must remand the case to allow the AOJ opportunity to review this evidence and readjudicate the Veteran's claims. See 38 C.F.R. § 19.31 A. Low Back Disorder The Veteran's service-connected low back disorder is currently evaluated as 40 percent disabling. Pursuant to the March 2011 Board Remand, the Veteran was afforded a VA examination in May 2011. During this examination, the Veteran described increasing back pain that was worse in the morning, and which, on a scale of one to ten, (with one being the least amount of pain and ten being the highest), he rated at a ten. The Veteran further reported daily flare-ups of pain and noted that he cannot do anything during these flare-ups and has to stop whatever he is doing and stay in bed or take a hot shower. According to the Veteran, he takes ten milligrams (mg) of oxycodone a day for his pain. While the Veteran reported use of a cane for long-distance ambulation, the examiner observed that the Veteran arrived at the clinic without any assistive devices. The examiner further noted that the Veteran did not use any orthotics or prosthetics and had not undergone any surgeries or injections to help alleviate his back pain. According to the examiner, the Veteran used the hot tub and hot water to reduce his back pain, and was also receiving some "chiropractor manipulation and some massage for his back as needed." The Veteran reported that his walking is limited to one block at a time, and he can only stand five to ten minutes at a time, and carry five to ten pounds due to his service-connected low back disorder. The examiner noted that the Veteran sold furniture after his separation from the Army, and stopped working in 2002 due to his medical problems. According to the Veteran, his back pain interferes with his activities of daily living, and he currently is unable to drive as a result of his low back disorder. With regard to his bowel and bladder symptoms, the Veteran reported to have diarrhea, which he attributed to his HIV. He also added that he can hold his bladder if he is sitting, but may have a urinary accident when standing. Upon physical examination, the examiner observed no signs of swelling or inflammation of the lower back. The Veteran was shown to have forward flexion to 70 degrees; extension to 10 degrees; right and left lateral bending to 30 degrees and right and left lateral rotation to 55 degrees. The examiner observed no additional limitation of motion following repetitive movement. According to the examiner, the Veteran's toe walk and motor function of the lower extremities were normal. In addition, all myotomes were 5/5, all dermatomes were shown to be normal, and the Veteran's straight leg raise test was unremarkable bilaterally. The Veteran also underwent an X-ray of the lumbar spine, the results of which revealed minor multilevel degenerative disk disease with degenerative changes. According to the examiner, the Veteran's bowel and bladder problems are related to his HIV and HIV related medication and have nothing to do with his low back disorder. Subsequent VA treatment records dated in May 2011 reflect the Veteran's on-going complaints of chronic low back pain. In July 2011, the Veteran underwent a magnetic resonance imaging (MRI) of his lumbar spine, the results of which revealed disc and facet degenerative changes in the lower lumbar spine and moderate foraminal narrowing in the L5-S1 region bilaterally and on the right side of the L4-L5 disc region. No significant central canal stenosis was identified. As previously discussed above, additional VA treatment records have been associated with the claim file since the issuance of the May 2012 SSOC. A review of these records reflects that the Veteran presented at the Milwaukee VAMC in August 2012 with complaints of severe and worsening back pain after he attempted to lift some cinder blocks a week prior. The Veteran requested stronger pain medication to help alleviate his symptoms. The Board notes that no orthopedic evaluation of the lumbar spine has since been conducted to indicate whether this was an acute flare-up of pain that resolved on its own, or something reflective of a permanent worsening of his low back disability. The duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. See Peters v. Brown, 6 Vet. App. 540, 542 (1994). Moreover, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In light of the Veteran's contentions, and given that the Board is precluded from arriving at its own unsubstantiated medical conclusions and is instead bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). B. HIV and Residuals of HIV The Veteran asserts that his HIV had its onset during active service. Specifically, in his July 2006 claim, the Veteran explained that he began experiencing symptoms, which he believes were early signs and manifestations of his HIV, during his period of active service. A review of the Veteran's service treatment records reflect that the Veteran was in good health at the time of his enlistment. Indeed, the clinical evaluation of his ears, drums, lungs, chest and heart, as well as his vascular, endocrine, and genitorurinary system was shown to be normal at his September 1981 enlistment examination. While the Veteran reported a history of gonorrhea in his medical history report, he did not report a history of any other sexually transmitted diseases. The remainder of the Veteran's service treatment records is clear for any documentation showing that he tested positive for HIV. However, clinical records dated from November 1982 to November 1985 reflect that throughout his period of service, the Veteran presented either at the emergency room, or at military sick call, with complaints of flu-like symptoms. During each visit, he was either assessed with exudative pharyngitis, an upper respiratory infection, headaches, a sore throat, or a viral syndrome. In September 1985, the Veteran presented at the military clinic with complaints of a headache, stiff neck, backache, nausea, and chest pain of three days duration. Upon physical evaluation of the Veteran, the treatment provider assessed him with a viral syndrome that had resolved. It should also be noted that results from the laboratory findings were devoid of any findings or mention of HIV test results. A review of the Veteran's post-service treatment records reflects that he began seeking treatment and care for residuals of his HIV in 1993. In particular, a January 1993 clinical note reflects the VA physician's notation that the Veteran reported to have tested positive for HIV in February 1991. Records issued at the Milwaukee VAMC, and dated from January 1993 to 1995 and January 2002 to September 2011, reflect that the Veteran regularly presented with on-going symptoms of fevers and respiratory problems which were routinely attributed to the mycobacterium avium complex (MAC) infection found in HIV patients. In January 2002, the Veteran presented at the Milwaukee VAMC and requested treatment for his HIV because his CD4 (cluster of differentiation 4) count was down to 65. The VA treatment provider noted that the Veteran was diagnosed with HIV in 1991, and had last received treatment for this disease in 1994. It was further noted that the Veteran moved to Alabama soon thereafter and declined treatment for his HIV. The Veteran reported that he had been coughing yellow sputum for ten days straight, and described associated symptoms of shakes, weakness and some shortness of breath. He was assessed with HIV with a low CD4 count, and prescribed an assortment of medication for his symptoms. During a July 2006 inpatient visit, the Veteran reported to have been HIV positive since 1991. However, the Veteran added that he believed he had been infected prior to the test. Upon reviewing the Veteran's medical history, the treatment provider noted that the Veteran had been diagnosed with, and treated for, pneumonia two times in his life. It was further noted that the Veteran had been admitted to the VAMC for treatment of multiple flea bites on his left medial shin, which turned into infected lesions, and had presented the week before with flu-like symptoms. The Veteran was afforded a VA examination in July 2007. During the examination, it was noted that he had been diagnosed with HIV in 1991. The Veteran reported that he was asymptomatic from an HIV standpoint at the time, and first began exhibiting symptoms of HIV, which he described as night sweats, fevers, chills, shortness of breath and recurrent infections, in 1995. The Veteran denied using any intravenous drugs or accidental needle sticks and further denied receiving any blood transfusions. According to the Veteran, he acquired HIV prior to 1981 through unprotected sex. However, upon reviewing the Veteran's medical records, the examiner noted a positive history of cocaine abuse. According to the examiner, the Veteran's HIV was now in remission and his current HIV symptoms included a poor appetite, occasional chills and night sweats. Based on his evaluation of the Veteran, the examiner diagnosed him with acquired immune deficiency syndrome (AIDS). Relying on the Veteran's reported statement that he had acquired this disease prior to 1981 through unprotected sex, as well as the September 1985 lab results which were clear for any findings of leukopenia, the examiner determined that the Veteran's HIV/AIDS was more likely than not acquired prior to service and was not secondary to service or treatment in service. According to the examiner, he could not find any in-service symptoms which were suggestive of an early manifestation of HIV. The Board acknowledges the examiner's medical opinion regarding the onset and etiology of the Veteran's HIV. However, the Board does not find the opinion to be an adequate one. A review of the statutory provisions indicates that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled in service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands - that is, that the Veteran was in sound condition at entry to service as to the disability for which he seeks service connection - must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner v. Principi, 370 F.3d 1089, 1094, 1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Here, while the examiner opined that the Veteran's HIV/AIDs was "more likely than not acquired prior to service", he did not provide the necessary opinion as to whether there was clear and unmistakable evidence that the Veteran's HIV/AIDs existed prior to service. Assuming that the claimed disorder existed prior to service, there also remains a question of whether the evidence clearly and unmistakably demonstrates that the Veteran's HIV/AIDs was not aggravated by service, and if not, whether entitlement to service connection on a direct basis is in order. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C.A. § 1153; Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Board does not find the July 2007 medical opinion to be adequate. Since the Board is precluded from reaching its own unsubstantiated medical conclusions and is instead, bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). As it remains unclear whether the Veteran's HIV clearly and unmistakably existed prior to his enlistment, and whether said disorder worsened during his service, another remand is necessary for a clarifying VA medical opinion. 38 C.F.R. §3.159 (c) (4). C. Psychiatric Disorder Other than Depression The Veteran maintains that his psychiatric symptoms arose in service. Turning to the service treatment records, the Board notes that the clinical evaluation of the Veteran's psychiatric system was shown to be normal at the September 1981 enlistment examination. In addition, the Veteran denied any psychiatric problems in his medical history report. While the service treatment records associated with the Veteran's first few years of service are clear for any psychiatric problems, a July 1983 sick call note reflects that the Veteran presented at the military dispensary with complaints of difficulty sleeping and increasing body twitches. The Veteran also reported to experience nervousness and body shakes that were so bad he had difficulty holding a fork to his mouth. The treatment provider assessed the Veteran with nervousness of unknown etiology and referred him to the Community Health Resource Center (CHRC) for a mental evaluation. The treatment provider at the CHRC interviewed the Veteran regarding his medical history and acknowledged his extensive history of 'nervousness.' According to the Veteran, this problem was worsening and progressing to the level where he was 'shaking' and experiencing difficulty holding objects. The treatment provider evaluated the Veteran's mental status, and noted that his thoughts were goal-oriented but his mood reflected a certain level of anxiety. Based on his evaluation of the Veteran, the treatment provider assessed him with adjustment difficulties. The remainder of the Veteran's service treatment records is clear for any psychiatric problems. However, at the February 1985 periodic examination, the Veteran reported a history of nervous trouble. He (the Veteran) also reported a history of difficulty sleeping and noted that he did not know whether he had a history of nervous trouble at his separation examination. The post-service medical evidence of record reflects diagnoses of depression/ adjustment disorder (see July 1995 VA medical report), anxiety (see March 2004 private treatment report), bipolar disorder (see January 2007 letter issued by J.G., M.D.) and a schizoaffective disorder (see undated letter date stamped as received in January 2007). In the March 2011 Board Remand, the Board instructed the AOJ to schedule the Veteran for a VA psychiatric examination to determine the nature, extent and etiology of any psychiatric disability he may have. The instructions specifically read that for any psychiatric disability diagnosed on examination, the examiner should opine as to whether it is at least as likely as not that such disorder had its clinical onset in service or is otherwise related to active duty. The examiner was also asked to provide a complete rationale for all opinions expressed. Pursuant to these instructions, the Veteran was afforded a VA psychiatric examination in April 2011, at which time, he described feeling very 'down inside' and further reported to experience difficulty sleeping and paranoia. The examiner reviewed the Veteran's medical records and noted that the Veteran was evaluated for mental health issues during service. The examiner also noted that the Veteran suffered a back injury in service and had a number of AIDS-related health issues, to include problems with his eyes and recurrent infections. According to the examiner, the Veteran's depressive symptoms were primarily triggered by chronic pain associated with his service-connected back injury. Based on his discussion with, as well as his evaluation of the Veteran, the examiner diagnosed the Veteran with depression, not otherwise specified, and related said disorder to the Veteran's service-connected back condition. The examiner also diagnosed the Veteran with bipolar disorder that was in partial remission. While the examiner related the Veteran's depression to his service-connected low back disorder, he did not discuss the etiology of the Veteran's bipolar disorder and only stated that the Veteran's mental health problems were not related to his original in-service psychiatric treatment for adjustment problems. While the Veteran has since been granted service connection for depression, the Board does not find the April 2011 VA medical opinion to be adequate with respect to the Veteran's diagnosed bipolar disorder. A medical opinion is sustained by the quality of the rationale used to support it, and the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 29, 201 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). According to the April 2011 VA examiner, "[i]t does not appear that [the Veteran's] original service-related visit for psychiatric purposes is currently connected or influences his current mental disorder." Other than referencing the July 1983 clinical records, the examiner does not cite to any additional records reviewed or medical literature relied upon in making his ultimate determination. Furthermore, the examiner failed to explain why the Veteran's in-service treatment for nervous trouble, difficulty sleeping, and adjustment problems was not early manifestations of, and/or did not lead to the development of his current bipolar disorder. Indeed, the examiner's rationale for his opinion appears conclusory as it does not explain why the Veteran's bipolar disorder is not related to his in-service psychiatric symptoms, or address other possible causes for the Veteran's diagnosed bipolar disorder. A rationale must be elucidated by a discussion of the medical principles that apply to the medical facts relating to the Veteran's disability. Furthermore, as previously discussed above, additional medical records reflecting outpatient treatment for psychiatric symptoms other than depression have since been associated with the Veteran's Virtual VA claims folder. Indeed, the Veteran was recently afforded another VA psychiatric examination in November 2012, at which time, the examiner determined that the Veteran met the full diagnostic criteria for bipolar disorder and cocaine dependence that was in remission. While the examiner described the Veteran's bipolar disorder as moderate to severe in nature, he did not provide an opinion as to whether said disorder was related to his in-service psychiatric treatment, or otherwise etiologically related to his military service. The March 2011 remand specifically instructed the examiner to provide a complete rationale for all opinions. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. In light of the inadequate medical conclusion, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any diagnosed psychiatric disorder other than depression. D. TDIU At his April 2011 VA psychiatric examination, the Veteran provided his occupational history and reported that he had experienced difficulty maintaining employment since injuring his back in service. According to the Veteran, he had been unemployed since 2002 primarily as a result of his back pain, depressive symptoms, and complications arising from his HIV and subsequent AIDS diagnosis. In this regard, the Board observes that the Veteran's statements indicate that he is unemployable as a result of his service-connected low back and psychiatric disability. The Court has 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 is rather part of the initial adjudication of a claim or part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. In September 2011, the Veteran submitted a completed VA Form 21-526b (Veteran's Supplemental Claim for Compensation), wherein he claimed that he was unemployable as a result of his service-connected low back disorder and depression. It does not appear that the RO has considered whether the Veteran may be entitled to a TDIU. Since this issue has not been adjudicated in the first instance by the AOJ, the Board does not have jurisdiction over the matter, and it must be remanded. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In addition, the Board finds that further evidentiary development is necessary-to include obtaining a pertinent medical opinion as to the effect of the Veteran's service-connected low back disorder and depression on his employability. Also, the record reflects that the Veteran has continued to receive treatment for all the above-mentioned disorders at the VAMC in Milwaukee, Wisconsin. 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). Finally, the Veteran has asserted that he receives benefits from the Social Security Administration (SSA). Pursuant to the March 2011 Board Remand, medical records pertaining to, and in support of, the Veteran's application for SSA benefits have been associated with the claims folder. However, a copy of the actual decision granting SSA disability benefits has not been associated with the claims folder and is currently not located in the compact disc (CD) which contains documents and files pertaining to the Veteran's SSA disability folder. Based on a review of the records and documents located in the CD, the Board is unclear as to whether a decision regarding the Veteran's claim for SSA disability benefits has yet to be made. When VA has notice that the Veteran is receiving disability benefits from the SSA and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996); 38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002), 38 C.F.R. § 3.159(c)(2) (2011). Therefore, on remand, VA should acquire a copy of the SSA decision. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a corrective Veterans Claims Assistance Act of 2000 (VCAA) notification letter pertaining to the issue of entitlement to a TDIU. 2. Request updated records of relevant treatment (pertaining to all the disabilities on appeal) received since November 2012 at the VAMC in Milwaukee, Wisconsin. Copies of such records which are available should be associated with the claims folder. All efforts to obtain this evidence must be documented in the claims folder. 3. Obtain a copy of the SSA decision concerning disability benefits to the Veteran, as well any medical records relied upon (that are not duplicative of evidence already associated with the claims file) concerning that determination. All efforts to obtain these records should be fully documented, and SSA should provide a negative response if these records are not available 4. Once these records have been retrieved and associated with the claims file, schedule the Veteran for an examination to determine the nature and extent of the service-connected chronic lumbosacral strain. The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination for review thereof. A notation to the effect that this review has occurred should be made in the examination report. Any testing deemed necessary should be performed. All pertinent pathology associated with the service-connected low back disorder should be noted in the examination report. The examiner should note the presence or absence of any favorable or unfavorable ankylosis of the Veteran's thoracolumbar spine. The examiner should also note the presence or absence of any unfavorable ankylosis of the entire spine. In addition, the examiner should identify any neurological pathology related to the service-connected low back disorder (identifying the nerves involved or seemingly involved) and fully describe the extent and severity of those symptoms. The examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome of the lumbar spine that requires bed rest prescribed by a physician and treatment by a physician. Also, the examiner should provide the ranges of motion of the Veteran's lumbosacral spine. The examiner should also note whether--upon repetitive motion-- there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range-of-motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should also provide an opinion concerning the impact of the service-connected low back disorder on the Veteran's ability to obtain and maintain substantially gainful employment. A complete rationale for all opinions expressed must be provided. 5. The Veteran's claims file should be referred to the same examiner as in July 2007 (A.V., M.D.) or any other VA physician if that physician is unavailable. The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination for review thereof. A notation to the effect that this review has occurred should be made in the examination report. All indicated tests should be performed, and the findings should be reported in detail. The examiner should specifically take note of the service treatment records and the July 2007 VA examination report. Following a review of the record and an examination of the Veteran, the examiner MUST provide a response to the following: a. Is there clear and unmistakable evidence that the Veteran's HIV existed prior to his enlistment in service? b. If so, is there clear and unmistakable evidence that the pre-existing HIV was not aggravated (or undergo a permanent increase in severity) during the Veteran's active service. If the Veteran's pre-existing HIV did undergo a permanent increase in severity, was that permanent increase in severity during service due to the natural progress of the condition? c. If the Veteran's HIV did not pre-exist his November 1981 service entry, then the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any such disability diagnosed on current examination had its onset in service or is otherwise causally or etiologically related to active service. The examiner should specifically discuss whether the Veteran's in-service treatment visits (dated from November 1982 to September 1985) for various flu-like symptoms were early manifestations of his currently diagnosed HIV. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 6. Also, accord the Veteran an appropriate VA examination for the purpose of determining the nature, extent, and etiology of any psychiatric disorder other than depression that may be present. The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination for review thereof. A notation to the effect that this review has occurred should be made in the examination report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. [Of particular importance here is the examiner's review of the July 1983 in-service clinical records which document the Veteran's complaints of, and treatment for nervousness, as well as an assessment of adjustment difficulties.] Following a review of the record and a mental evaluation of the Veteran, the examiner should identify any psychiatric disorder(s) other than depression present, and provide diagnoses for all identified disability(ies). For any such disability(ies), diagnosed on examination, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability(ies) had its(their) clinical onset in service or is(are) otherwise causally or etiologically related to the Veteran's military service. Specifically, the examiner should determine whether psychiatric problems noted during the Veteran's military service were manifestations, or led to the development, of any current psychiatric disability(ies) other than depression. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced psychiatric problems since service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 7. Then, schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities [low back disability, and depression] on his employability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should then comment on the combined effect of the service-connected disabilities on the Veteran's ability to engage in any type of full-time employment, including whether any form of 'light duty' or 'sedentary work' is possible and whether, in the examiner's opinion, these service-connected disabilities are of such severity as to result in an inability to obtain and to maintain employment. If the examiner finds that the Veteran is employable, he or she should explain how the Veteran is capable of obtaining or maintaining any type of employment in light of any physical and/or mental restrictions resulting from his service-connected disabilities. In offering this opinion, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's competent and credible lay statements. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 8. Then, readjudicate the issues of entitlement to an initial increased rating for chronic lumbosacral strain, entitlement to service connection HIV, and entitlement to service connection for a psychiatric disorder other than depression. In addition, adjudicate the issue of entitlement to a TDIU. If these benefits sought on appeal are not granted, the Veteran should be provided with a SSOC. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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 Court. 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).