Citation Nr: 1323370 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-50 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for depression, to include as secondary to service-connected disabilities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 and August 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. In this regard, such does contain a May 2013 presentation from the Veteran's representative, a copy of which has been physically associated with the claims file. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As noted by the Veteran's representative in her May 2013 presentation to the Board, the Veteran in his December 2009 substantive appeal expressed sentiments tantamount to disagreement with an August 2009 denial of service connection for depression. The Veteran's representative contends that such argument represents a timely notice of disagreement with the August 2009 denial of the claim for service connection for depression, to include as secondary to service-connected disabilities, thereby necessitating the issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Board finds that the Veteran's contentions in question represent a timely notice of disagreement with the denial of the claim for service connection for depression. 38 C.F.R. § 20.201. As such, upon remand, the agency of original jurisdiction (AOJ) will be requested to issue a statement of the case addressing this issue. Manlincon, supra. However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). With respect to the claim for TDIU, a claim to which an appeal to the Board has been properly perfected, the resolution of the claim for service connection for depression, as noted by the Veteran's representative in her May 2013 presentation to the Board, may impact the claim for entitlement to TDIU. Therefore, these claims are inextricably intertwined, and the adjudication of the claim for TDIU must therefore be deferred pending the resolution of the claim for service connection for depression. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, as the Veteran argued in May 2009 that the impact of the "huge amount" of medication he has to take for his service-connected disabilities, which include right knee, left knee, and right elbow disabilities, has not been considered, and as an examination conducted for the purposes of determining the impact of the Veteran's service-connected disabilities on his employability was most recently conducted over four years ago in February 2009, the Veteran should be afforded a new VA examination that addresses the impact of his service-connected disabilities, to include the medication taken for such disabilities, on his employability. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.326; see also Green v. Derwinski, 1 Vet. App. 121, 124(1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Additionally, while on remand, the AOJ should contact the Veteran and request that identify any VA or non-VA treatment providers for his service-connected disabilities. Thereafter, the AOJ should attempt to obtain any identified treatment records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with a statement of the case on the issue of entitlement to service connection for depression, to include as secondary to service-connected disabilities. Please advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who treated him for his service-connected disabilities. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination so as to assess the impact his service-connected disabilities, to include the medication taken for such disabilities, has on his employability. The claims file, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the record and examination of the Veteran, the examiner should render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either singularly or jointly, and in consideration of the medications he takes for such disabilities, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. In this regard, the Veteran is service-connected for degenerative joint disease of the right knee with post-operative cyst lateral meniscus and post-operative meniscectomy, right knee instability, post-operative status left medial meniscectomy with degenerative changes, post-operative left medial meniscectomy, degenerative joint disease of the left knee, and residuals of fracture of the right elbow. The examiner should specifically consider the Veteran's argument that he takes a huge amount of medication to cope with the constant pain and the side effects of such medication should be taken into consideration as limiting his mental capabilities. The opinion should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for TDIU should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).