Citation Nr: 1322990 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 08-33 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to an effective date earlier than August 30, 2006 for the assignment of a 10 percent rating for basal cell carcinoma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from September 1950 to April 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the San Juan, Commonwealth of Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2012 when it was remanded for additional development. In March 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in April 2013, and in May 2013, the Board informed the appellant that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. Additional evidence was associated with the Veteran's claims file in June 2013 with a waiver of Agency of Original Jurisdiction consideration. This evidence will thus be considered by the Board in the adjudication of this 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 issue of entitlement to earlier effective date for the grant of an increased 10 percent rating for basal cell carcinoma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's acquired psychiatric disability is not related to and did not have its onset in service, and was not caused or aggravated by service-connected skin disabilities. 2. The Veteran's service-connected disabilities are acne vulgaris of the face and back and fungus of the feet (rated 30 percent); and basal cell carcinoma (rated 10 percent). The combined disability rating is 40 percent. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder, including as secondary to service-connected skin disabilities, is not warranted. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for entitlement to TDIU are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants 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). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expect to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the VCAA duty to notify was satisfied by way of a May 2009 letter. The May 2009 letter was sent prior to the initial RO decision in this matter. The May 2009 letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the appellant's claim. The May 2009 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records and post-service VA and private treatment records. The Veteran had VA examination in August 2012, and in March 2013 the Board sought an advisory medical opinion from the VHA; such opinion was secured in April 2013. As the April 2013 VHA opinion was based upon an accurate understanding of the disability at issue, as well as the Veteran's documented medical history, based upon review of his claims file, the Board finds it is adequate for the purposes of deciding his claim for service connection for an acquired psychiatric disability decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Dingess/Hartman, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). B. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Additionally, under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodrigues, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that his psychiatric disability is etiologically related and due to his service-connected skin disabilities. The Veteran's service treatment records are silent for complaints, findings, treatment, or diagnosis for a psychiatric condition. Service connection is in effect for acne vulgaris of the face and back and fungus of the feet, rated 30 percent disabling, and for basal cell carcinoma, rated 10 percent disabling. Private treatment records from Dr. Hernandez show that the Veteran began receiving neuropsychiatry treatment in July 2008. A December 2008 VA primary care report noted the Veteran's complaint of memory loss and that he was recently evaluated by a neurologist. A March 2009 letter from Dr. Nanette A. Ortiz noted that as a result of the Veteran's skin condition, the need for multiple and constant treatments, the limitations and changes in his life style, he presents emotional problems characterized by frustration, low self-esteem, and low energy. After reviewing the record, it was opined that it was more probable than not that his service-connected skin disability caused an emotional problem, and that it was more probable than not that his emotional problem should, in essence, be service connected. No specific diagnosis of a current psychiatric disability was provided. The instant claim for a psychiatric disability was received in April 2009. July 2009 to July 2010 VA treatment records note the Veteran's continued complaints of memory loss. In July 2012, the Board remanded this matter for additional development. On August 2012 VA mental disorder examination, it was noted that the Veteran's first encounter with a mental health professional was in July 2008 due to forgetfulness and trouble sleeping. His symptoms include a depressed mood and mild memory loss. The diagnosis was depressive disorder not otherwise specified. After a review of the Veteran's claims file, it was opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected condition (in part due to the period of time between separation of service and the first postservice evidence of psychiatric care). Notably, no opinion was provided regarding aggravation, and the March 2009 letter from Dr. Nanette A. Ortiz was not addressed or acknowledged. Based on the August 2012 VA examination, the Board found that additional guidance was necessary in this case. Accordingly, in March 2013, the Board requested the opinion of a medical specialist from the VHA. In an April 2013 VHA medical opinion, the specialist noted that the Veteran received treatment for his acne and skin condition from 1950 through 2004. In addition, VA primary care reports from 2006 through 2009 did not indicate any difficulties with depressed mood. In July 2008, he began receiving treatment with Dr. Hernandez, a neuropsychiatrist. Noting that the treatment records are difficult to interpret due to legibility problems, the specialist noted that from the use of the diagnostic codes, Dr. Hernandez indicated that the Veteran suffered from Alzheimer's dementia. At the first visit, Dr. Hernandez entertained the possibility of recurrent major depression, but this was apparently not confirmed and the code was no longer used. Moreover, the treatment, including medication, was for dementia. It was noted that the record shows the Veteran has been diagnosed with Alzheimer's type dementia and depressive disorder, not otherwise specified. The VHA specialist opined that it was not likely that the Veteran developed a psychiatric disability caused even in part by his service-connected skin disabilities. He worked successfully until 2004 and through at least one removal of basal cell carcinoma without psychiatric treatment. Moreover, depressive symptoms were not mentioned in his record until 2009 after he had been diagnosed with Alzheimer's disease. [The Board notes that while the VHA specialist noted depressive symptoms were not mentioned until 2009, it is clear that such was a typographical error as he previously mentioned in the report that such began in July 2008, and in the same sentence, he noted that the depressive symptoms diagnosis was made by Dr. Hernandez. Nonetheless, the Board finds that such error is of no significance and has little to no effect on the probative value of the VHA report and the opinions expressed therein.] Notably, the VHA specialist noted that the diagnosis of Alzheimer's disease was by a neuropsychiatrist, who would be best qualified to diagnose dementia and depression in the elderly. Significantly, the neuropsychiatrist did not diagnose any type of depression or provide any treatment for depression. It was noted that the mood symptoms developed several years after treatment for his service-connected skin disabilities, and the diagnosis of dementia was prior to the mood symptoms. Based on the above facts, it was opined that it was not likely that the service-connected skin disabilities caused, even in part, the mood disorder. There is no link between life stressors and the development of dementia, and the depressive disorder is linked through the dementia, not existing on its own. The VHA specialist further noted that the proposed (by Dr. Ortiz in March 2009) nexus for aggravation of the Veteran's psychological difficulties by the service-connected skin disorder is through demoralization. It was opined that it was highly unlikely that the demoralization caused by his skin disorders were sufficient to aggravate his post-military acquired dementia or depression. Alzheimer's dementia is not subject to aggravation by demoralization, and documentation indicates the Veteran had dealt well with his skin disorders, without demoralization, for many years prior to developing dementia. Hence, the nexus of a connection between his skin disorders and depression does not have validity. At the time of development of mood symptoms, his dementia and other illnesses were far more demoralizing than the skin disorder which had not prompted demoralization in the past. In a June 2013 VA letter (with a waiver of AOJ jurisdiction), it was noted that since active duty the Veteran started to suffer from depressive manifestations that still persist. It was opined that it was far beyond reasonable doubt the Veteran's depression is directly related and due to his service-connected condition. Diagnoses of major depression and a skin condition were provided. After a thorough review of the foregoing evidence, the Board finds that the greater weight of the evidence is against the conclusion that the Veteran's psychiatric disability is related to service or caused by his service-connected skin disabilities. In reaching this determination, the Board has considered an array of factors, including the probative value of the numerous medical opinions discussed herein, and the Veteran's medical history as reflected in the claims file. In this case, there is no indication that Dr. Nanette A. Ortiz, in the formulation of the March 2009 letter, was privy to the Veteran's claims file. Review of the claims file would have revealed that, despite being service-connected for a skin disability for over 40 years, there are no medical complaints of depression or other psychiatric symptoms due to such condition until July 2008. Significantly, while there appears to have been an initial indication of depression in July 2008, subsequent treatment by Dr. Hernandez provided no diagnostic codes for depression or a psychiatric disability according to the April 2013 VHA medical opinion. In short, review of the objective medical evidence in the claims file would have revealed to Dr. Nanette A. Ortiz a picture quite different than that described in the March 2009 letter. The Board also finds significant that the March 2009 letter by Dr. Nanette A. Ortiz noted the Veteran had an "emotional problem"; no actual diagnosis of a psychiatric disability was provided in the March 2009 letter. Likewise, it does not appear that the physician that authored the June 2013 VA letter was privy to the Veteran's claims file. To the extent it was opined that since active duty the Veteran started to suffer from depressive manifestations that still persist, the Board finds that such is of no probative value. As noted above, such is inconsistent with the contemporaneous evidence of record as there is no evidence of psychiatric symptoms or diagnosis until July 2008. Thus, while the June 2013 VA physician opined that the Veteran's depression is due to his service-connected skin disabilities, such opinion is based on an inaccurate factual background. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a physician's opinion based on an inaccurate factual premise has no probative value). During the course of this appeal, the Veteran has undergone one VA mental disorder examination and an opinion has been sought from a VHA medical expert, both of whom had access to the claims file and therefore the benefit of a more complete review of the Veteran's physical and mental health history. Neither of these individuals found that the Veteran had depression, or any other psychiatric disability as a result of his service-connected skin disabilities. This finding is consistent with the preponderance of the evidence contained in the claims file. While the August 2012 VA examination report did not adequately address the theory of secondary service connection (neglecting the theory of aggravation), and is therefore of limited probative value, the Board finds that the April 2013 VHA medical expert opinion is the most probative evidence of record, and is against the Veteran's claim for service connection for a psychiatric disability. The VHA report considered the evidence of record, including the lack of a diagnosis or treatment for depression by a neuropsychiatrist in private treatment records, and noted that the diagnosis of Alzheimer's dementia preceded the diagnosis of depressive disorder or any psychiatric disability, that no psychiatric complaints, symptoms or treatment were found for over 40 years of treatment for his skin disabilities, and that the diagnosis of depressive disorder was not provided until after the diagnosis of Alzheimer's dementia. On this basis, the nexus of a connection between his skin disabilities and his depression, either proximately or by aggravation, does not have validity. For these reasons, the Board finds that the greater weight of the evidence is against the claim for service connection for a psychiatric disability as secondary to his service-connected skin disabilities. Additionally, given the lack of medical evidence of a psychiatric disability for decades after service (see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)), and a specific medical opinion rejecting a link between the Veteran's currently-shown psychiatric symptoms and service, the Board finds that the greater weight of the evidence is against the conclusion that the Veteran's psychiatric disability was incurred in, or aggravated by, service. TDIU A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). Review of the Veteran's claims file shows he has a GED. He has an employment history of working in construction, and he retired in 2004 from the United States Postal Service due to age and duration of work. See August 2012 VA mental disorder examination report. The Veteran's service-connected disabilities consist of acne vulgaris of the face and back and fungus of the feet, rated 30 percent disabling, effective April 6, 1965; and basal cell carcinoma, rated 10 percent disabling, effective August 30, 2006. The combined disability rating is 40 percent. Accordingly, he does not meet the schedular threshold for consideration of TDIU under 38 C.F.R. § 4.16(a). However, because it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, rating boards should submit to the Director of the Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). "The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) ... and for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994); Stanton v. Brown, 5 Vet. App. 563, 564-70 (issue of extraschedular rating is separate from issue of TDIU rating). The Board must address referral under 38 C.F.R. § 3.321(b)(1) only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of "exceptional or unusual circumstances" indicating the rating schedule may be inadequate to compensate for average impairment of earning capacity due to the disability. In contrast, 38 C.F.R. § 4.16 does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. See VAOPGCPREC 6-96 (Aug. 16, 1996). The Veteran appears to contend that he is unable to secure substantially gainful employment due to his skin disabilities and his depression. The Board notes that when determining entitlement to TDIU, only the Veteran's service-connected disabilities, without regard to his age or nonservice-connected disabilities, may be considered. Here, service connection is in effect only for his skin disabilities. The Board acknowledges that there is evidence that the Veteran's service-connected skin disabilities may limit his capability of employment, as he has submitted private medical evidence opining he cannot be exposed to sunlight and other environmental conditions due to his skin disabilities. See September 2007 Dr. Rosa Rivera letter. The preponderance of the evidence, however, shows that his service-connected skin disabilities alone does not render him unable to secure substantially gainful employment. In this regard, the Board finds significant that he retired in 2004 due to age/duration of work, not because his skin disabilities rendered him unable to maintain his employment. Based on the evidence and analysis above, the Board concludes that referral for extraschedular evaluation under 38 C.F.R. § 4.16(b) is not warranted. VA has attempted to assist the Veteran and provide additional information and evidence to support his claim for TDIU. Notably, the Veteran failed to complete and return a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) provided with a May 2009 VCAA letter regarding his claim for TDIU. Hence, it is unclear the significance such a form and the information within would have helped the Veteran substantiate his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Nonetheless, based on the information and evidence in the record, the Board finds the criteria for award of TDIU, to include on an extraschedular basis, are not met. Accordingly, the claim must be denied. ORDER Service connection for a psychiatric disability, including as secondary to service-connected skin disabilities, is denied. Entitlement to TDIU is denied. REMAND In a July 2012 decision, the Board granted an increased (10 percent) rating for the Veteran's service-connected basal cell carcinoma. In a July 2012 rating decision, an effective date of August 30, 2006 was assigned for the increased (10 percent) rating. In subsequent November 2012 correspondence, the Veteran expressed disagreement with the effective date assigned for the increased rating. The Board accepts the Veteran's November 2012 correspondence as a notice of disagreement with the July 2012 rating decision. See 38 C.F.R. § 20.201 (2012). However, the RO has not yet issued the Veteran a statement of the case (SOC) with respect to this claim. Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). 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. Issue the Veteran a SOC with respect to his claim of entitlement for an earlier effective date for the increased 10 percent rating for his service-connected basal cell carcinoma, to include notification of the need to timely file a substantive appeal to perfect his appeal on this issue. 2. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs