Citation Nr: 1316002 Decision Date: 04/02/13 Archive Date: 05/15/13 DOCKET NO. 11-25 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for major depression disability. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Mr. J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1959 to April 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In that rating decision, the RO continued a 50 percent evaluation for major depression disability. The Board adds that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. As discussed in further detail below, the evidence of record has reasonably raised the issue of TDIU. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending initial rating claim, and is listing the raised TDIU claim as an issue on appeal. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially, the Board observes that a remand is needed in order for the Agency of Original Jurisdiction (AOJ) to consider additional evidence received in March 2012 (after the Statement of the Case dated in September 2011), for which no waiver has been provided. See 38 C.F.R. § 20.800. This evidence includes a March 2012 private rehabilitation evaluation report, in which the private evaluator assessed the severity of the Veteran's depression symptomatology and the overall affect of his disability on his ability to maintain substantially gainful employment. In addition, the record now contains a September 2011 correspondence from the Veteran's employer that notifies VA that the Veteran's employment has been terminated because of the severity of his psychiatric symptomatology, as well as additional statements from the Veteran and his wife attesting to the worsening of his symptomatology since his employment was terminated. A remand is also in order to afford the Veteran a new examination. Since the Veteran as last evaluated by VA in a June 2010 psychiatric examination, the Veteran reports that his symptomatology due to his major depression disability has worsened. The Veteran was terminated from his employment as a case manager in August 2011. The Veteran reports that since his termination, he feels his depressed moods are more frequent and last longer. He reports increased feelings of hostility and irritability towards other to such a degree that he no longer feels comfortable attending his group meetings or socializes with friends. His wife reports that the Veteran's personal hygiene has deteriorated to the point where he goes for days without showering, shaving, or changing his clothes. See February and March 2012 statements in support of the case. The Veteran and his wife have provided credible reports that his symptomatology has worsened since June 2010. VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his major depression disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Thus, the Board has no discretion and must remand this claim in order to afford the Veteran another VA examination. The additional evidence of record mentioned above shows that the Veteran was terminated from his place of employment as a case manager in August 2011 because of his symptomatology due to his major depression disability. The Veteran has also asserted that he is no longer able to obtain and maintain employment because of his disability. As the Veteran has asserted that his major depression disability prevents him from working, the claim for an increased rating for major depression disability also includes the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (the issue of TDIU is part and parcel of a claim for an increased rating when it is raised by the claimant or the record); 38 C.F.R. §§ 3.340, 4.16 (2012). On remand, the agency of original jurisdiction (AOJ) should conduct all appropriate development pertaining to the TDIU issue, to include providing the Veteran with notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law as to what is required to establish entitlement to TDIU. The RO/AMC should also take this opportunity to seek the Veteran's assistance in obtaining any outstanding records of pertinent treatment and associate them with the claims file. The record should be updated with the Veteran's VA treatment records since June 2010. Accordingly, the case is REMANDED for the following action: (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/AMC shall inform the Veteran of the elements of a claim for a TDIU under 38 C.F.R. § 4.16; and permit him the full opportunity to supplement the record as desired. Any additional development shall be undertaken as necessary. 2. The RO/AMC should seek the Veteran's assistance in obtaining any outstanding records of pertinent VA and private treatment and associating them with the claims folder. The Veteran's VA treatment records since June 2010 should be associated with the claims folder. 3. After all the available records have been associated with the record, the RO/AMC should schedule the Veteran for a VA psychiatric examination, with an appropriate specialist, to evaluate the current severity of his major depression disability. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the Veteran's major depression disability should consist of all necessary psychiatric testing, to include a mental status evaluation. The examiner is asked to comment on the degree of severity of the Veteran's service-connected major depression, and its effect on his employment and activities of daily living. In particular, the examiner should indicate whether the Veteran's service-connected psychiatric condition, either alone or in combination with his left calf laceration scar and/or tinnitus, renders him unable to obtain or maintain gainful employment. A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 4. Thereafter, the RO/AMC should readjudicate the issues on appeal with consideration of the additional evidence, including the updated VA and private medical records. If any benefit sought on appeal is not fully granted, a supplemental statement of the case should be issued. Thereafter, the case should be returned to the Board, 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). 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). _________________________________________________ DAVID L. WIGHT 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).