Citation Nr: 1322003 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-47 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an increased rating for major depression, currently rated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971. This appeal arises from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Board acknowledges that in his August 2009 Notice of Disagreement, the Veteran indicated that he was appealing an August 2009 rating decision by the RO, which continued a 50 percent disability rating for major depression. However, VA was in receipt of that Notice of Disagreement, as well as new and material evidence consisting of July 2009 VA treatment for psychiatric problems, within one year of a prior May 2009 rating decision addressing the Veteran's psychiatric condition. 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thus, the Board finds that the May 2009 rating action is the proper determination certified for appellate review. As a final preliminary matter, the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board observes that the record reflects that the Veteran may be unemployable due to his service-connected psychiatric disorder. Thus, TDIU is part of his claim for an increased rating currently before the Board and must be adjudicated as such. 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 The Veteran was last afforded a VA examination to evaluate his psychiatric disorder in April 2009. Evidence received since that examination suggests that his condition has worsened. For example, VA treatment notes dated in July 2009 show that the Veteran was hospitalized for a suicidal gesture and, in October 2009, he was noted to still be on the high risk list for suicide. In April 2010, the Veteran reported that his depression had been significantly worse lately. Where the Veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, a new examination is necessary to assess the current severity of the Veteran's psychiatric disorder. Additionally, the record reflects that the Veteran receives regular VA treatment for his psychiatric disorder. However, no records dated after April 2010 have been associated with the Veteran's paper claims file or virtual VA file. Therefore, relevant ongoing VA treatment notes dated after April 2010 should be obtained. Finally, turning to the Veteran's implicit TDIU claim, the Board notes that the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran was previously denied entitlement to a TDIU by the RO in a March 2006 rating decision, and the Veteran did not appeal that decision. Nor has he specifically asserted during the course of his increased rating claim on appeal that he is unemployable due to his service-connected psychiatric disorder. Nevertheless, during the course of his increased rating claim on appeal, an April 2009 VA examiner explicitly stated that, although the Veteran was unable to work currently due to a physical condition, she questioned whether the Veteran would be able to work with the amount of depression and PTSD he is experiencing. As such, entitlement to a TDIU must be addressed in connection with this appeal. Id. However, a decision on the Veteran's TDIU claim at this time would be premature. The record shows that the Veteran does not currently meet the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a) (2012). Nevertheless, the outcome of the pending psychiatric increased rating claim may have bearing on whether the schedular criteria of 38 C.F.R. § 4.16(a) for a TDIU are met. Accordingly, the Board finds that the Veteran's TDIU claim is inextricably intertwined with his pending claim for a higher disability rating for his psychiatric disorder, and consideration of the Veteran's TDIU claim must be deferred until the RO readjudicates his pending claim for an increased rating. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his psychiatric symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Associate with the claims file, physically or electronically, copies of the Veteran's VA treatment records from April 2010 to the present. 3. Then, schedule the Veteran for an appropriate VA examination to address the current severity of his service-connected major depression. The examiner should be provided with the Veteran's claims file for review in conjunction with the examination. The examiner is also asked to provide an opinion as to whether the Veteran's combined service-connected disabilities, either alone or in the aggregate, render him unable to secure and follow a substantially gainful occupation. The examiner should note that this opinion is without regard to the Veteran's age or the impact of any nonservice-connected disabilities on his ability to secure or follow a substantially gainful occupation. The supporting rationale for all opinions expressed should be provided in the report. 4. Then, readjudicate the appeal. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow for an appropriate period for response. The appeal should then be returned to the Board for further appellate review, if in order. 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). _________________________________________________ MICHAEL E. KILCOYNE 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).