Citation Nr: 1322970 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 13-00 638 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 50 percent for psychological factors affecting gastrointestinal. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected psychological factors affecting gastrointestinal. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from August 1955 to August 1958. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2011 rating decision in which the RO denied the Veteran's claim for an increased rating for psychological factors affecting gastrointestinal as well as his claim for TDIU. In August 2012, the Veteran filed a notice of disagreement (NOD) with this rating decision. A statement of the case (SOC) was issued in October 2012 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2012. In June 2013, the Vice Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). A review of the paperless, electronic (Virtual VA) VA claims processing system does not reveal any documents pertinent to the claims on appeal. For reasons expressed below, the matters on appeal are being remanded to RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. The Veteran filed the instant claims in April 2011. In May 2011, the Veteran failed to appear for a scheduled VA mental disorders examination. However, the Veteran indicated in an August 2012 NOD that he had been hospitalized at the time of the May 2011 VA examination and that his wife had contacted VA to inform them that the Veteran was unable to attend this examination. As good cause had been shown for missing the VA examination, the RO/AMC should schedule him for another examination to determine the nature and severity of his disability. See 38 C.F.R § 3.655 (2012). Hence, the RO should arrange for the Veteran to undergo VA psychiatric examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the claim for an increased rating for, and for a TDIU due to, service-connected psychological factors affecting gastrointestinal. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Regarding the claim for a TDIU due to psychological factors affecting gastrointestinal, the Board observes that total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). However, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The Veteran has generally asserted that he is unable to work due to his psychological factors affecting gastrointestinal. In a May 2011 letter, the Veteran was instructed to complete an Application for Increased Compensation based on Unemployability (VA Form 21-8940). Such an application has not been received. On remand, the Veteran should be instructed to complete this form. Prior to arranging for the Veteran to undergo further examination, the RO/AMC should also obtain and associate with the claims file all outstanding, pertinent records. The Board notes that there are no records in the claims file relevant to the current appellate period. In this regard, the RO/AMC should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The letter should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO/AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO/AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO/AMC's adjudication of the claim for higher rating should include consideration of whether "staged rating" of the disability (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate. In connection with the higher rating claim, the RO/AMC should also consider and discuss whether the procedures for assigning any higher rating on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1) (2012) are invoked. Also, in adjudicating the matter of a TDIU due to psychological factors affecting gastrointestinal, even if the percentage requirements of 38 C.F.R. § 4.16(a) are not met, the RO/AMC should consider whether the procedures for consideration of an extra-schedular TDIU, pursuant to 38 C.F.R. § 4.16(b), are invoked. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO/AMC should furnish to the Veteran a VA Form 21-8940 to enable him to file a formal application for a TDIU due to psychological factors affecting gastrointestinal. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Also clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R § 3.159 (2012). All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA mental disorders examination, by a psychiatrist or psychologist, at a VA medical facility, to determine the current nature and severity of his service-connected psychological factors affecting gastrointestinal. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) of: depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; memory loss; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; delusions and/or hallucinations; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score that represents the level of impairment due to the Veteran's psychiatric disorder, and an explanation of what the score means. Based on review of the Veteran's documented medical history and assertions, the examiner should also indicate whether, at any time since the April 2011 claim for increase, the Veteran's service-connected psychiatric disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. The physician should fully describe the functional effects of the Veteran's service-connected psychological factors affecting gastrointestinal of his ability to perform the acts required for employment. The examiner should set forth all examination findings, along with complete rationale for any conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report for the scheduled examination, a copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility should be obtained and associated with the claims file. 6. To help avoid future remand, the RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claims on appeal. If the Veteran fails to report to the scheduled examination, in adjudicating the claims for an increased rating and for a TDIU due to psychological factors affecting gastrointestinal, the RO/AMC should apply the provisions of the 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO/AMC should adjudicate the claims on appeal in light of all pertinent evidence (to particularly include all that added to the record since the RO/AMC's last adjudication of the claim) and legal authority (to include, as regards the claim for a TDIU, 38 C.F.R. § 4.16(b), as appropriate), as well as, with respect to the claim for a higher rating, consideration of whether staged rating, pursuant to Hart (cited above), is appropriate. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered (in particular, 38 C.F.R. § 4.16(b), along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).