Citation Nr: 1311673 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-30 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for bipolar disorder. 2. Entitlement to an initial total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to September 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. RO jurisdiction is, however, with the RO in Chicago, Illinois. It is noted that service connection was granted for bipolar disorder, then described as manic depression, in a June 2006 rating decision in response to the Veteran's claim received May 18, 2005. In July 2006, the RO received the Veteran's request for TDIU, basing his request on his service-connected psychiatric disability. That "claim" is therefore part of his initial claim received May 18, 2005. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (holding that, in general, a request for TDIU is not a separate claim but involves an attempt to obtain an appropriate rating for a disability, including as part of an initial adjudication of a claim). Furthermore, received by the RO within one year of the July 2006 notification of the June 2006 decision, was additional evidence including a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, received in July 2006, and the report of a November 2006 VA social -industrial survey compensation and pension (C&P) examination. New and material evidence received within the appeal period of an unappealed RO decision will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b)(2012). The This U.S. Court of Appeals for Veterans Claims (Veterans Court) has explained that "if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" that prevents an initial determination from becoming final." See King v. Shinseki, 23 Vet. App. 464, 466 (2010) (quoting from 38 C.F.R. § 3.156(b)); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011). The Veterans Court has explained that evidence relating to TDIU received within the one year period of assignment of an initial rating that is less than the maximum sought may constitute new and material evidence under 38 C.F.R. § 3.156(b). Rice, 22 Vet. App. at 454. Given the Veteran's statement received in July 2006 and, at minimum, the November 2006 C&P examination report, if additional benefits are granted for his service connected psychiatric disability, including TDIU, the proper date of claim is May 18, 2005. In September 2011, the Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In a February 2009 rating decision, the RO determined that the Veteran is not competent to handle disbursement of funds. In the letter providing notice of that decision, the RO stated that the decision was made due to the Veteran's forgetfulness and the RO named his spouse as payee for VA benefit purposes. As the Veteran signed the July 2010 VA Form 9 substantive appeal and provided testimony during the September 2011 Board hearing, the Board concludes that the Veteran is prosecuting this appeal. The Board has therefore listed the Veteran as the appellant on the title page of this document. 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 A remand is necessary so that VA can fulfill its duty to assist the Veteran in obtaining evidence to substantiate his claim by providing an examination and obtaining an opinion that reflects the current severity of his disability, including whether it renders him unemployable. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Veterans Court has held that when a claimant alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Similarly, VA's General Counsel has indicated that 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) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). In this case, VA most recently afforded the Veteran an examination with regard to his service-connected bipolar disorder in August 2007. During the September 2012 hearing, the Veteran testified that symptoms of his bipolar disorder have increased in severity since that examination. See Board hearing transcript (T.) at 10-13. He reported that he was having more sleep difficulty (nightmares), mood disturbances, memory difficulties, and was more aggressive since the last examination. Id. As the Veteran has testified that his bipolar disorder has worsened since the last VA examination, and given the lack of other evidence adequate to rate this disability, including whether it renders him unemployable, the Board finds that VA must afford him a new examination. Additionally, it is noted that in May 2010, medical and administrative records associated with the Veteran's claim for disability benefits administered by the Social Security Administration (SSA) were added to the claims file in electronic format (a compact disc). The SSA determined that, for its purposes, the Veteran became disabled in May 2006 due to affective / mood disorders and anxiety related disorders. Those records include relevant statements and medical reports. On remand the agency of original jurisdiction (AOJ) must ensure that the documents on that compact disc are available for the VA examiner to review. Because those SSA records address a period of time contemporaneous with or prior to the August 2007 VA examination, the examination provided pursuant to this Remand should include review of those records and the examiner should address the severity of his bipolar disorder during the entire period on appeal. That examination must address all symptoms of the Veteran's service-connected bipolar disorder and the examiner must provide an expert opinion as to whether his service-connected bipolar disorder acting either alone or together with his other service-connected disabilities, renders him unable to secure and follow a substantially gainful occupation, both at present and at any time since May 2006, the date that the Veteran reports last working in a substantially gainful occupation. See 38 C.F.R. § 4.16 (2012). At present, the Veteran's service-connected disabilities are as follows: bipolar disorder rated at 50 percent, tinnitus rated at 10 percent, mechanical low back pain, left shoulder impingement syndrome, right elbow lateral epicondylitis, and bilateral hearing loss, all rated noncompensable. At present, the Veteran does not have one service connected disability rated 60 percent or higher and does not have two or more service-connected disabilities with a combined rating of 70 percent. Therefore, if it is determined that the Veteran is unable to follow a substantially gainful occupation solely due to service-connected disability or disabilities, and the ratings continue to be less than the thresholds just discussed, the (AOJ) must refer the TDIU aspect of this claim for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Finally, the most recent VA treatment records that are associated with the claims file are from a community based outpatient clinic (CBOC) that is part of the Hines VA Medical system. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the AOJ should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. Obtain records of treatment of the Veteran by the Hines VA Medical Center (VAMC) and related CBOCs for the period from June 2008 to the present and associate any records obtained with the claims file. If no records are obtained, obtain a negative reply and associate that reply with the claims file. 2. Make arrangements for the Veteran to be afforded an examination by a medical doctor specializing in psychiatry (a psychiatrist) to evaluate his bipolar disorder and to provide an expert medical opinion as to whether his service-connected disabilities, acting separately or together, render him unable to secure and follow a substantially gainful occupation. The examiner must be provided with a copy of this remand and the claims file for review in conjunction with the examination and must annotate the examination report as to whether he or she reviewed the claims file. That review should include review of the records from the Social Security Administration associated with its 2007 decision. The examiner is asked to accomplish the following: (a) Identify any and all manifestations of the Veteran's bipolar disorder and discuss the severity of such manifestations. Provide a Global Assessment of Functioning score of the Veteran's level of social and occupational impairment and discuss the significance of the score. All indicated tests and studies should be conducted. (b) The examiner must provide an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (i.e., probability of 50 percent or greater) that his service-connected disabilities alone, acting either separately or collectively, render him unable to secure and follow a substantially gainful occupation, taking into consideration the Veteran's level of education as well as any special training and previous work experience. Rationale for any opinion rendered must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. If the evidence shows that the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability or disabilities, and the percentage thresholds for consideration of TDIU on a schedular basis are not met, refer the issue for extraschedular consideration pursuant to and in compliance with 38 C.F.R. § 4.16(b) (2012), and allow time for a response. 4. After the above development is completed, readjudicate the issue of entitlement to a disability evaluation in excess of 50 percent for bipolar disorder and entitlement to TDIU, as appropriate. If any benefit sought on appeal remains denied, provide the Veteran and his representative with supplemental statement of the case and allow an appropriate opportunity for response thereto before returning the case to the Board, if in order. 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). _________________________________________________ MICHAEL A. HERMAN 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).