Citation Nr: 1317735 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-17 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating in excess of 50 percent for service-connected major depressive disorder (MDD). 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 2004 to November 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO), which continued the 50 percent evaluation for MDD. The issue of entitlement to a total rating based on individual unemployability due to service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. For the entire increased rating period on appeal, the Veteran's MDD has more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: sleep disturbance, near-continuous depression, anxiety, intermittent suicidal ideation and hospitalization, irritability, and inability to establish and maintain effective relationships. 2. For the entire increased rating period on appeal, the Veteran's MDD has not more nearly approximated total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. CONCLUSION OF LAW For the entire increased rating period on appeal, resolving reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 70 percent for MDD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, a VCAA notice letter sent in January 2008 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. Service treatment records, VA treatment records, VA examinations, and lay statements have been associated with the claims file. The Veteran was afforded VA examinations in February 2008 and March 2011. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; fully address the relevant rating criteria; and contain a discussion of the effects of the Veteran's service-connected MDD on the Veteran's occupational and daily activities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Board will discuss in more detail below, symptoms related to the Veteran's MDD are shown to more nearly approximate a 70 percent disability rating for the entire increased rating period on appeal. Accordingly, the Board finds that a staged rating is not warranted in this case. The Veteran is in receipt of a 50 percent disability rating for MDD under Diagnostic Code 9434. A rating of 50 percent is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2012); Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Increased Rating for MDD The Veteran claims that his service-connected MDD is worse than the current 50 percent evaluation contemplates and contends that a higher evaluation is warranted. Specifically, the Veteran contends that he has been hospitalized due to his psychiatric symptoms, which include suicidal thoughts and an attempt. See Veteran's statement dated November 2008 and representative's brief dated April 2013. The evidence of record includes a January 2008 VA discharge summary report. The VA psychiatrist noted that the Veteran had been admitted to the VA hospital due to homelessness, depression, and suicidal ideation two days after being released from a psychiatric unit. The Veteran reported that he had been arrested for drug paraphernalia and was kicked out of his mother's home after he was laid off. The Veteran further reported suicidal ideation. The VA psychiatrist administered a Personality Assessment Inventory, as well as the Millon Clinical Multiaxial Inventory-3 (MCMI-3). The results of the Personality Assessment Inventory suggested marked depression, anxiety, and hopelessness. The Veteran also scored high on avoidant tendencies on the MCMI-3. The January 2008 VA psychiatrist assigned a GAF score of 50, reflecting serious symptoms or any serious impairment in social, occupational or school functioning. In February 2008, the Veteran was afforded a VA psychiatric examination which was conducted at the VA medical center during the Veteran's hospital admission. The Veteran reported that his first hospitalization was in 2004, where he was diagnosed with MDD with suicidal ideation and was prescribed medication. In 2006, the Veteran overdosed on sleeping pills and was hospitalized. In 2007, the Veteran attempted to hang himself; however, the attempt was unsuccessful and he was hospitalized for one week. In January 2008 he was again admitted to a VA hospital and discharged with psychiatric medication. During the February 2008 VA examination, the Veteran reported sleeping all day with decreased concentration, decreased interest, and depressed mood. The Veteran stated that he suffered from panic attacks and he would feel nervous and on edge. Upon mental status examination, the Veteran was pleasant and cooperative. He had moderate anxiety without psychomotor agitation or retardation. The Veteran was alert and oriented to time, place, person, and situation. He was spontaneous and talkative. Speech was of a normal rate and tone and was coherent and goal-directed. Thoughts were focused on being mistreated in service and the Veteran continually had to be redirected. Affect was noted as constricted, non-labile, and appropriate. Mood was depressed and cognition was well-preserved. The Veteran's memory was intact. Poor insight and limited judgment were also noted. The February 2008 VA examiner indicated that the Veteran was competent for VA purposes and assigned a GAF score of 40, indicative of some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. The VA examiner opined that the Veteran's current MDD symptoms interfered with occupational and social functioning and required medication. In a separate February 2008 VA discharge summary, the VA psychiatrist noted that although the risk of future non-fatal suicide gestures was probably high, the VA psychiatrist did not think the Veteran was a serious threat to complete suicide. During his hospital admission, the VA psychiatrist reported that the Veteran had a disagreement with the VA doctors regarding which medication he should be prescribed. The VA psychiatrist reported that the Veteran became angry and proceeded to scratch his forearms with a tack. The Veteran also threw a chair at the wall, but no one was injured. The February 2008 VA psychiatrist assigned a GAF score of 35, reflecting some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. The Veteran was afforded a second VA psychiatric examination in March 2011. The VA examiner reviewed the claims file; specifically reviewing past VA discharge summary reports and the February 2008 VA examination report. The Veteran reported that he was unable to relax, his mind raced, he feared losing control, and was scared. The Veteran reported he had thought about suicide in the previous three years and had made a plan to hang himself, but he was unable to do it. He indicated that while he had thoughts run through his mind within the past 30 days, he denied making an attempt. The Veteran denied being violent or assaulting anyone, but indicated he had got irritated and yelled at people. The VA examiner noted that the Veteran was administered the Beck Depression Inventory-II and the Beck Anxiety Inventory assessment. Results from the Beck Depression Inventory revealed a raw score of 50, which the VA examiner stated reflected severe depression, with symptoms of pessimism, punishment feeling, indecisiveness, worthlessness, changes in sleep pattern, irritability, concentration difficulty, and loss of interest in sex. The VA examiner noted that these moderate symptoms appeared to be consistent with the Veteran's presentation during the examination. The Veteran's Beck Anxiety Index produced a raw score of 31, which suggested severe anxiety. The VA examiner also conducted a suicide screen and risk assessment and stated that the Veteran had a moderate risk of suicide. Upon mental status examination, the March 2011 VA examiner noted that the Veteran was moderately anxious. Speech was well modulated. The VA examiner noted affect was depressed and defeated with a wide range, from smiling to tears. The Veteran described his mood as numb and disconnected. The Veteran was also oriented to person, place, and time, and his thought process was generally clear and focused. Judgment was fair, but insight was poor. The VA examiner opined that the Veteran appeared to be doing somewhat better than he was during the February 2008 VA examination as he had not been hospitalized for several years and had been able to take some college classes, although he still was unable to find employment. The VA examiner further noted that the Veteran was able to take care of his daughter for most of the weekend and he seemed to take pride and joy in that relationship. Otherwise, the VA examiner noted that the Veteran was fairly isolated. Although still married, the Veteran was separated from his wife and only has a few friends. The VA examiner found that the Veteran's depression and anxiety continued to affect him fairly significantly, but the Veteran did appear to have learned how to better tolerate his symptoms. The VA examiner assigned a GAF score of 46, indicative of serious symptoms or any serious impairment in social, occupational or school functioning. Based upon review of all the competent and probative lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's MDD symptoms more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As discussed in detail above, VA psychiatric examinations and VA discharge summary notes reveal that the Veteran experienced deficiencies in most areas, including work (Veteran has been unemployed for over 3 years), family relations (married, but separated from wife), mood and judgment (near-continuous depression and anxiety with intermittent suicidal ideation, throwing chair against wall during VA psychiatric treatment session, self-inflicted mutilation with tack during VA psychiatric treatment session). In addition, the Board notes that during the entire increased rating period on appeal, the Veteran's GAF scores have ranged from 35 to 55. In the January 2008 VA discharge summary note, the Veteran was assigned a GAF score of 50. In the February 2008 VA admission note, the GAF score was 35; during the February 2008 VA psychiatric examination, the GAF score was 40. In an April 2008 VA treatment note, the Veteran's GAF score was 55. In the most recent March 2011 VA examination, the GAF score was 46. The Board finds that the majority of the GAF scores throughout the entire increased rating period on appeal reflect serious MDD symptoms or serious impairment in social, occupational or school functioning, with only one score (55) indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV at 46-47. Therefore, for the reasons stated above, and resolving reasonable doubt in the Veteran's factor, the Board finds that a 70 percent disability evaluation for MDD is warranted for the entire increased rating period on appeal. The Board further finds that, for the entire increased rating period on appeal, the Veteran's MDD does not more nearly approximate a 100 percent disability evaluation. The Board finds that the Veteran's MDD symptoms do not demonstrate total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. See 38 C.F.R. § 4.130. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. Mauerhan, 16 Vet. App. at 442. With this in mind, the evidence shows that the Veteran's overall MDD picture is already adequately contemplated by the 70 percent rating granted herein. The Veteran does suffer from some sleep problems which require medication, but this is contemplated under sleep impairment listed under the criteria for a 30 percent rating, a lower rating than his currently assigned 70 percent evaluation. Disturbance of motivation and mood (depression), and difficulty in establishing and maintaining relationships are specifically contemplated in the 50 percent and 70 percent rating criteria. The same is true with the Veteran's anxiety which is a symptom contemplated under the 50 percent MDD disability rating. The Veteran's reported panic attacks, intermittent suicidal ideation, and impaired impulse control are adequately contemplated under the 70 percent MDD rating criteria. Further, the weight of the competent and probative evidence of record demonstrates that the Veteran's thought process, memory, spatial orientation, and communication are within normal limits. The Veteran does not suffer from hallucinations and has been found capable of performing activities of daily living (including maintenance of minimal personal hygiene and handling his own finances). While the evidence indicated a history of intermittent suicidal ideation with some planning and some anger issues, the weight of the evidence does not demonstrate persistent danger of hurting self or others. The Board further finds that the Veteran does not demonstrate total social impairment as the Veteran has a good relationship with his daughter, attends college classes, and reported having a few friends. For these reasons, the Board finds that the evidence of record, including the probative GAF scores in the record, do not demonstrate total occupational and social impairment. Accordingly, the Board finds that a 100 percent MDD disability evaluation is not warranted. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for MDD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's MDD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9434, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, the Veteran's MDD was manifested by sleep disturbance, near-continuous depression and anxiety, intermittent suicidal ideation and hospitalization, irritability, and inability to establish and maintain effective relationships. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with an acquired psychiatric disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER An increased disability rating of 70 percent, but no higher, for major depressive disorder is granted. REMAND A claim for entitlement to a TDIU is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). There is evidence in the record that the Veteran's MDD symptoms may cause unemployability. In a January 2008 VA discharge summary report, the Veteran reported working at a steel plant, but stated that he had been missing a fair amount of work due to depression symptoms. The Veteran further reported that he lost his job because he was arrested for possession of drug paraphernalia and his boss fired him. The Veteran reports having been unemployed for over three years. In the February 2008 VA psychiatric examination, the VA examiner opined that the Veteran's current MDD symptoms interfered with occupational functioning. In the March 2011 VA examination, the Veteran reported that he was attending school, but was still unable to find employment. Entitlement to a TDIU has not been adjudicated by the RO, nor developed for appellate consideration at this time. As such, it must be adjudicated by the RO prior to appellate consideration. Accordingly, the case is REMANDED for the following action: 1. Issue VCAA notice relative to the issue of entitlement to a TDIU. 2. Adjudicate the issue of entitlement to a total rating based on individual unemployability due to service-connected disability. Notice of the determination and the Veteran's appellate rights should be provided to the Veteran and his representative. Only if an appeal is completed as to this matter should the issue be returned to the Board for appellate consideration. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs