Citation Nr: 1313396 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 98-15 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for an anxiety reaction with posttraumatic stress disorder (PTSD) and somatizing personality manifestations, currently evaluated as 30% disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney At Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran had active service from August 1944 to November 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. In November 1999, the Board remanded the issue of a rating in excess of 10% to the RO for further development of the evidence and for due process development. By decision of May 2001, the Board granted a 30% rating for the Veteran's psychiatric disability, and denied a rating in excess of 30%. The Veteran appealed the denial of a rating in excess of 30% to the U.S. Court of Appeals for Veterans Claims (Court). By April 2002 Order, the Court vacated that portion of the Board's May 2001 decision that denied a rating in excess of 30% for the psychiatric disorder, and remanded the matter to the Board for compliance with the instructions contained in an April 2002 Joint Motion for Remand and Stay of Proceedings of the Appellant and the VA Secretary. In June and December 2003, the Board remanded the issue of a rating in excess of 30% to the RO for further development of the evidence and for due process development. By decision of June 2005, the Board denied a rating in excess of 30% for the Veteran's psychiatric disability. The Veteran again appealed the denial to the Court. By March 2007 Order, the Court vacated the Board's June 2005 decision, and remanded the matter to the Board for compliance with the instructions contained in a February 2007 Joint Motion for Remand of the Appellant and the VA Secretary. In August 2007, the Board remanded this case to the RO for further development of the evidence and for due process development. By decision of January 2009, the Board denied a rating in excess of 30% for the Veteran's psychiatric disability. The Veteran again appealed the denial to the Court. By February 2010 Order, the Court vacated the Board's January 2009 decision, and remanded the matter to the Board for compliance with the instructions contained in a February 2010 Joint Motion for Remand of the Appellant and the VA Secretary. Most recently, in February 2011, the Board remanded the Veteran's claim for an additional VA examination and opinion. The RO issued a supplemental statement of the case in July 2011 and the appeal is once again before the Board. The Veteran testified before a Decision Review Officer (DRO) in October 1998. A copy of the transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. TDIU- In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran has indicated that his psychiatric disability negatively affected his ability to work. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice. However, the Veteran has not received notice pursuant to the VCAA as it pertains to his claim for TDIU. If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board therefore must remand the case to the agency of original jurisdiction because the record does not show that the Veteran was provided adequate notice under the VCAA and the Board is without authority to do so. Psychiatric Disorder- The February 2011 BVA remand requested that the VA examiner offer an opinion as to the effect of the Veteran's service-connected psychiatric disability upon his employability. The VA examiner was reminded that the Veteran is service-connected for anxiety reaction with PTSD and somatizing personality manifestations. It is unclear whether he considered all of these diagnoses in his opinion. Although the VA examiner provided a general opinion that the Veteran was not totally unemployable he did not provide a detailed assessment of the effect of his service-connected psychiatric disability on his employability. Moreover, the February 2011 BVA remand noted that in this employability assessment the VA examiner must review and address T. P., M.D.'s, October and November 2007 medical reports wherein he attributes the Veteran's gastrointestinal symptomatology to a somatoform disorder, as well as the January and September 2008 VA psychiatric evaluations. This was not completed. The Board is obligated by law to ensure that the RO complies with its directives; 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. Stegall v. West, 11 Vet. App. 268 (1998). Thus, on remand, the Veteran should be accorded a pertinent VA addendum opinion. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should ensure that notification is provided regarding requirements and development procedures necessary to substantiate a claim for TDIU. 2. Return the Veteran's claims file to the examiner(s) who conducted his VA examination in June 2011, or to a qualified medical professional if that examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. (a) The physician should comment as to whether the Veteran's service-connected psychiatric disability is best described as productive of 'mild,' 'definite,' 'considerable,' or 'severe' social and industrial impairment; (b) Provide an assessment as to the effect of the Veteran's service-connected psychiatric disability upon his employability. In assessing the effect of the Veteran's psychiatric disability upon his employability, the physician is reminded that the Veteran is service-connected for an anxiety reaction with PTSD and somatizing personality manifestations, and that the assessment should include consideration of all such symptomatology. In reaching his employability assessment, the examiner should review and address T. P., M.D.'s, October and November 2007 medical reports wherein he attributes the Veteran's gastrointestinal symptomatology to a somatoform disorder, as well as the January and September 2008 VA psychiatric evaluations. A rationale for all requested opinions shall 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. The VA opinions must be reviewed to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO must implement corrective procedures. 4. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 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). These claims 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). _________________________________________________ F. JUDGE FLOWERS 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).