Citation Nr: 1315933 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 12-18 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial rating higher than 30 percent for mood disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In January 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is included in the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. During a May 2011 VA examination, the Veteran reported that he had been unemployed for five to ten years and contended that such unemployment was due to the effects of his mental disorder. The record thus indicates that the Veteran might intend to raise the issue of entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU), and this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the AOJ should contact the Veteran to determine whether he is claiming entitlement to a TDIU, and take any further appropriate action. 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 During his January 2013 Board hearing, the Veteran and his representative asserted that his mood disorder had worsened in severity since the most recent VA examination of his disability in May 2011. When a veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination or other evidence of worsening. VAOPGCPREC 11-95 (1995). Thus, the appeal must be remanded for a new VA examination to determine the current nature and severity of the Veteran's service-connected mood disorder. Also, during the January 2013 Board hearing, the Veteran testified that he was currently receiving VA treatment, and had most recently been treated earlier that month. The claims file reflects that the Veteran had been receiving treatment from the Buffalo VA Medical Center (VAMC). 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. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The most recent VA treatment records in the claims file are dated in May 2011. Accordingly, on remand, the RO or AMC should obtain any pertinent records from the VAMC in Buffalo dated from May 2011 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records related to the Veteran's mood disorder from the Buffalo VAMC, dated from May 2011 to the present. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his mood disorder. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated special tests should be accomplished. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Mark W. Greenstreet 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).