Citation Nr: 1304062 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 03-18 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 60 percent for Human Immunodeficiency Virus (HIV) disease. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1977 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for HIV disease and assigned a 10 percent disability rating. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the Waco RO in August 2002. A transcript of the hearing is of record. In February 2005, March 2007, and March 2008, the Board remanded the present matter for additional development. In an April 2011 decision, the Board granted an initial rating of 60 percent for HIV disease for the entire period on appeal. In May 2012, the United States Court of Appeals for Veterans Claims (Court) issued a memorandum decision which vacated the Board's decision insofar as it denied entitlement to a rating in excess of 60 percent for HIV disease. The Court remanded this claim for further action in accordance with its decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Court remanded this claim for further consideration of whether a higher rating may be granted for HIV disease based on a psychiatric manifestation of this disorder, to include whether a VA examination was warranted to make this assessment. See 38 C.F.R. § 4.88b, DC 6351, NOTE (2) (2012) (providing, in pertinent part, that a psychiatric manifestation of an HIV-related illness may be rated separately under an appropriate diagnostic code if a higher overall evaluation results, but not in combination with percentages otherwise assignable under DC 6351). The VA and private treatment records reflect that the Veteran has had depression, anxiety, and feelings of "hopelessness" in connection with his HIV. See, e.g. May 2012 VA treatment record; February 2006 private treatment record (noting anxiety related to HIV). On remand, the Veteran should be afforded a VA psychiatric examination to assess the degree of severity of such symptoms and resulting social and occupational impairment. A new VA examination to evaluate the current level of severity of the Veteran's HIV-related illness is also warranted in accordance with VA's duty to assist under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000 & Supp. 2012) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this regard, the duty to assist includes providing a medical examination when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Where the evidence of record does not reflect the current state of the veteran's disability, a new VA examination must be conducted. See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here, a VA examination was last performed in August 2010. Since that time, the Veteran reported tremors in a May 2011 VA treatment record and underwent an MRI of the brain in October 2011 at VA due to a possible stroke, which did not show any abnormalities. He also reported progressing HIV in a September 2012 VA treatment record. Thus, as there is evidence suggesting that the Veteran's HIV has worsened since he was last examined by VA, a new VA examination should be provided to ensure a complete and current record on appeal. See id. The issue of entitlement to TDIU has also been raised in connection with this appeal, and therefore a VA opinion is warranted to determine whether the Veteran's HIV-related illness renders him unable to engage in substantially gainful activity. See 38 C.F.R. §§ 3.340, 4.16 (2012). Specifically, in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the Court held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. 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 of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. Here, the Veteran recently submitted a claim for TDIU in June 2011, which was denied in a May 2012 rating decision. In his application for TDIU, the Veteran stated that his HIV and fatigue prevented him from securing or maintaining a substantially gainful occupation, and that he discontinued working in October 2010. Although the Veteran did not appeal the May 2012 decision, this claim raises the issue of unemployability associated with his HIV. See id. Accordingly, a VA opinion is warranted on the issue of whether manifestations of his HIV are sufficiently disabling as to prevent him from engaging in substantially gainful activity. This opinion can be rendered in the HIV-related illness examination, as discussed below. Then, the RO should adjudicate the issue of entitlement to TDIU in connection with this appeal. The Board notes that the RO recently obtained records from the Social Security Administration (SSA) associated with a claim for SSA disability benefits. SSA responded that these records were being furnished via CD. While some of these records have been printed out and associated with the claims file, including an SSA psychiatric evaluation, the actual SSA determination is not of record. Moreover, the CD is not in the claims file. Where VA has notice that the Veteran is receiving disability benefits from the Social Security Administration (SSA), and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2); Hayes v. Brown, 9 Vet. App. 67 (1996). On remand, the RO should take this opportunity to associate the SSA decision with the claims file, and to associate any other outstanding SSA records on the CD with the claims file. If the SSA determination or other relevant SSA records are not actually on the CD, then the RO must make additional efforts to obtain these records until it determines that further efforts would be futile. The RO should also associate any outstanding VA treatment records generated since September 2012 and associate them with the file. A copy of the Veteran's VA Vocational Rehabilitation file should also be obtained. Accordingly, the case is REMANDED for the following actions: 1. Make arrangements to obtain the Veteran's VA Vocational Rehabilitation file. 2. Obtain any outstanding VA treatment records generated since September 2012 and associate them with the claims file. 3. Obtain a copy of the SSA disability determination and associate it with the file, as well as any outstanding SSA records not already in the file. In this regard, SSA indicated that its records were furnished to the RO via CD. However, the CD is not in the claims file. The RO should make sure that any records available on the CD are associated with the file, and/or should associate the CD itself with the file. If the SSA decision is not on the CD or if it appears that there are other outstanding SSA records not available on the CD, the RO should make further efforts to obtain these records until it concludes that such efforts would be futile. If these records cannot be obtained, all efforts to obtain them must be documented and associated with the file, and the Veteran must be notified of this fact and provided with an opportunity to submit these records himself. The RO should also make a formal finding of unavailability and associate it with the file. 4. Thereafter, schedule the Veteran for a VA psychiatric examination. The entire claims file and a copy of this REMAND must be provided to the examiner prior to the examination. The examiner must indicate in the examination report that the evidence in the claims file has been reviewed. The VA and private treatment records reflect that the Veteran has had depression, anxiety, and feelings of "hopelessness" in connection with his HIV. See, e.g. May 2012 VA treatment record; February 2006 private treatment record (noting anxiety related to HIV). The examiner must discuss the level of severity of the psychiatric manifestations of the Veteran's HIV-related illness. The examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are attributable to the psychiatric manifestations of his HIV-related illness. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the Veteran's psychiatric manifestations of his HIV-related illness on his social and industrial adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's psychiatric impairment consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. It is specifically requested that the examiner indicate whether it is at least as likely as not (50% or greater probability) the Veteran's service-connected HIV, to include any psychiatric manifestations, preclude him from obtaining and maintaining substantially gainful employment when considering his level of education, prior work experience and training, etc., but not disabilities that are not service connected and without regards to his age. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 5. The Veteran should be scheduled for a VA HIV-related illness examination to assess the current level of severity of this disorder. The entire claims file and a copy of this REMAND must be provided to the examiner prior to the examination. The examiner must indicate in the examination report that the evidence in the claims file has been reviewed. All tests and studies deemed helpful by the examiner should be conducted and all clinical findings reported in detail The examiner must discuss all impairment associated with the Veteran's HIV-related illness, and in particular must address whether there are recurrent opportunistic infections or with secondary diseases afflicting multiple body systems; and/or debility and progressive weight loss, without remission, or few or brief remissions. Psychiatric or central nervous system manifestations, opportunistic infections, and neoplasms should be identified and discussed. It is specifically requested that the examiner indicate whether it is at least as likely as not (50% or greater probability) the Veteran's service-connected HIV, to include any/all associated manifestations, preclude him from obtaining and maintaining substantially gainful employment when considering his level of education, prior work experience and training, etc., but not disabilities that are not service connected and without regards to his age. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 6. After the above development is completed, review the examination reports to ensure that they comply with the Board's remand directives. If not, the report(s) should be returned to the examiner(s) for correction. 7. Finally, readjudicate the issue of whether a rating in excess of 60 percent is warranted for HIV as well as the issue of entitlement to TDIU. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ P.M. DILORENZO 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).