Citation Nr: 1323250 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-03 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 70 percent for schizophrenia. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1995 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and February 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the December 2008 rating decision, the RO assigned a 70 percent disability rating for the Veteran's schizophrenia. In the February 2009 rating decision, the RO denied entitlement to a TDIU. The Veteran submitted two separate notices of disagreement (NODs), one in respect to each prior rating decision, in May 2009. The RO subsequently issued a November 2009 statement of the case (SOC) that only addressed the claim for an increased rating. The Veteran submitted a substantive appeal (VA Form 9) in December 2009. In May 2009, the Veteran submitted a premature VA Form 9 on which he raised the issues of entitlement to service connection for diabetes mellitus and narcolepsy, as aggravated by schizophrenia (and medications prescribed for schizophrenia). As those claims were previously denied in rating decisions that have not been appealed, the Board interprets the Veteran's May 2009 Form 9 as a petition to reopen those claims. As such, the issues of whether new and material evidence have been submitted to reopen claims of entitlement to service connection for diabetes mellitus and narcolepsy, claimed as aggravated by schizophrenia, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims file reveals that further RO action in regard to the appeal is warranted, even though such will, regrettably, further delay an appellate decision. As an initial matter, the Board observes that the Veteran submitted a May 2009 NOD as to the denial of a TDIU. As the Veteran filed an NOD in regard to that issue, issuance of an SOC is required. See 38 C.F.R. § 19.29 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this issue must be remanded to the RO for the issuance of an SOC. Id.; and see 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). Review of a June 2013 brief submitted by the Veteran's authorized representative reflects that the Veteran has contended that his current disability rating does not accurately reflect the severity of his service-connected schizophrenia. The representative noted both that the Veteran's disability had deteriorated since his last VA examination and that the examination of record, conducted in September 2008, was too remote to reflect the Veteran's current clinical picture. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA determines that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2012). Because the evidence currently of record appears inadequate to resolve the claim for a higher rating for the Veteran's service-connected schizophrenia, further examination of the Veteran is warranted and the RO should arrange for the Veteran to undergo a VA mental disorders examination, by an appropriate medical provider, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (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. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain all pertinent, outstanding records. The record reflects that there are outstanding VA medical records which may be pertinent to the claim. Specifically, the claims file does not reflect any VA treatment records for the time period from May 18, 2006 to February, 21, 2008, during which time the Veteran reported treatment through the Central Arkansas Veterans Healthcare System. Such records are, in part, relevant to the increased rating claim pursuant to 38 C.F.R. § 3.400(o)(2) and they may implicate 38 C.F.R. § 3.156(b) since a prior claim of entitlement to an increased rating for schizophrenia was denied by a June 2006 rating decision issued to the Veteran in October 2006. Further, the VA records last associated with the record, from the Tennessee Valley Healthcare System, were generated on June 12, 2009, more than four years ago. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding records of relevant VA evaluation and/or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The evidence of record also indicates that some employment records may be pertinent to his claim. Specifically, the Veteran has reported that his schizophrenia, and side effects of schizophrenia medication, interfered with his employment while he was employed. He has also contended that he is no longer working as a result of his service-connected psychiatric disability. VA has a duty to advise a claimant of the potential relevance of employment records. See Spurgeon v. Brown, 10 Vet. App. 194, 197-98 (1997). Therefore, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see 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). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent records from his former employer(s). Thereafter, the RO 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 of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal in light of all pertinent evidence and legal authority. Accordingly, the case is REMANDED for the following action: 1. The RO must furnish to the Veteran and his representative an SOC on the issue of his entitlement to a TDIU. The SOC should be accompanied by VA Forms 9, and the Veteran and his attorney must be afforded the appropriate opportunity to file a substantive appeal on this issue. 2. Gather any outstanding VA treatment records from facilities in Arkansas and Tennessee. Note that records generated through the Central Arkansas Veterans Healthcare System from May 18, 2006 to February 21, 2008 are not associated with the claims file. Further, records generated after June 12, 2009 by the Tennessee Valley Healthcare System also are outstanding. Associate any available records with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 3. Afford the Veteran an additional opportunity to submit any private evidence that is not within the current record. Specifically advise him of the potential relevance of employment records on his claim for increase. Provide him with forms authorizing the release of any outstanding private treatment and/or employment records. Make at least two (2) attempts to obtain records from any identified source and associate available records with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 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 an appropriate medical professional, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented assertions and medical history, to specifically include his private treatment. All indicated tests and studies should be accomplished (with all findings made available to the examiner 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: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; suicidal ideation; and delusions and/or hallucinations. The examiner should provide a multi-axial diagnosis, including assignment of a Global Assessment of Functioning score and an explanation of what the score means. The examiner should also render an opinion, based upon review of the record and consistent with sound medical principles, as to whether-without regard to non-service-connected disability(ies) or advancing age-it is s at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected psychiatric disability, alone, renders him unable to obtain or retain substantially gainful employment. Finally, the examiner should discuss whether, considering all pertinent lay and medical evidence, there has/have been any change(s) in the severity of the service-connected schizophrenia since the last, September 2008, VA examination. If so, the examiner should identify the approximate date(s) of any such change(s), and provide an assessment of the severity of the disability for each date. The examiner should set forth all findings and test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy (ies) of any notices of the date and time of the examination sent to him by the pertinent VA medical facility. 6. Readjudicate the remanded claims, to include, in specific regard to the increased rating claim, consideration of any appropriate staged ratings. If either claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claims is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). These claims 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). _________________________________________________ MARJORIE A. AUER 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).