Citation Nr: 1307478 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 98-19 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Entitlement to an initial rating in excess of 30 percent for dysthymic disorder with polysubstance dependence. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran had active service from October 1984 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In January 2009, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. He also testified at a June 2005 hearing at the RO before a hearing officer. Transcripts of both hearings are in the claims file. The issue of entitlement to service connection for an acquired psychiatric disorder had previously been on appeal before the Board and was remanded by it in March 2009 and September 2010 for further development. Subsequently, service connection for dysthymic disorder with polysubstance dependence was granted in an August 2012 rating decision. While the issue of service connection for a psychiatric disorder is no longer before the Board, the Veteran submitted a timely notice of disagreement (NOD) with the initial rating assigned this disorder, as discussed in more detail below, thereby initiating appellate review of this "downstream" issue. See Grantham v. Brown, 114 F.3d 1156,1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The issue of entitlement to TDIU was also remanded by the Board in March 2009 and September 2010 for further development. It now returns for appellate review. The appeal is REMANDED to the RO via the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND While the Board regrets the delay, the issues on appeal must be remanded for further development to ensure a complete and current record, and to satisfy all due process requirements, before they are ready for appellate review. As noted above, service connection for dysthymic disorder with polysubstance abuse was granted in an August 2012 rating decision. An initial rating of 30 percent effective January 15, 2002, the date of the Veteran's claim, was assigned. In an October 2012 brief, the Veteran argued that the agency of original jurisdiction (AOJ) erred in denying an initial rating in excess of 30 percent for his service-connected acquired psychiatric disorder, and that "the appropriate remedy for this appeal" is a rating in excess of 30 percent. The October 2012 brief constitutes a timely NOD to the August 2012 rating decision. See 38 C.F.R. § 20.201 (2012) (providing, in pertinent part, that a NOD is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative action by the AOJ and a desire for appellate review); 38 C.F.R. § 20.302(a) (2012) (providing, in pertinent part, that a NOD must be submitted within one year from the date that notice is mailed to the claimant of the determination by the AOJ). Thus, the Veteran has initiated appellate review of the initial rating assigned his service-connected psychiatric disorder. See 38 C.F.R. § 20.200 (2012) (providing, in pertinent part, that an appeal consists of a timely filed NOD in writing). Accordingly, the appeal of the initial rating assigned the Veteran's service-connected psychiatric disorder must be remanded so that the RO may provide him with a Statement of the Case (SOC) on this issue. See 38 C.F.R. §§ 19.26(d), 19.29, 19.30 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92). However, after issuance of the SOC, the Veteran must perfect the appeal by filing a timely substantive appeal in order for this issue to be certified to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2012); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. The issue of entitlement to a TDIU is dependent on the outcome of the Veteran's appeal of the initial rating assigned his service-connected psychiatric disorder. In this regard, the evaluation of a service-connected psychiatric disorder is based to a large extent on its effect on occupational functioning. See generally 38 C.F.R. § 4.130 (2012). Moreover, the ultimate rating assigned on appeal for this disorder may determine whether the Veteran is eligible for schedular consideration of entitlement to TDIU. See 38 C.F.R. § 4.16(a) (2012). Accordingly, the Board will defer consideration of the issue of entitlement to TDIU at this time. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). The RO should take this opportunity to provide the Veteran with a new VA psychiatric examination, as the last VA psychiatric examination was performed in January 2010 and is now over three years old. Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), 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) (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Finally, the RO should associate any recent outstanding VA treatment records with the claims file, and request the Veteran to identify any other treatment records pertaining to his psychiatric disorder which he wishes VA to obtain on his behalf. Accordingly, the case is REMANDED for the following actions: 1. The Veteran's recent outstanding VA treatment records, including from the Northern Indiana Healthcare System dating from August 2012 forward, and from any other identified facility, should be associated with the file. 2. The Veteran should be requested to identify any recent medical treatment he has received for his psychiatric disorder. Then, the RO should take appropriate steps to secure copies of any treatment records identified by the Veteran which are not currently of record, including any private treatment records for which he has furnished the necessary authorization. If the RO is unable to obtain any private or VA treatment records identified by the Veteran, he must be notified of this fact and all efforts to obtain such records must be documented and associated with the claims file. 3. The Veteran should be scheduled for a VA psychiatric examination. The record and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the record has been reviewed. The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for mental health disorders. The DBQ should be filled out completely as relevant. In the examination report, the examiner must provide an opinion as to whether the Veteran's psychiatric disorder is sufficiently incapacitating as to prevent him from securing or maintaining substantially gainful employment, without regard to other factors such as age and disabilities that are not service connected. A complete explanation must be provided. 4. Then, issue an SOC addressing the issue of entitlement to an initial rating in excess of 30 percent for the Veteran's acquired psychiatric disorder and furnish a copy to the Veteran and his representative. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 5. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the RO should readjudicate the issue of entitlement to TDIU on the merits. 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). 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). _________________________________________________ J. CONNOLLY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).