Citation Nr: 1324931 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 06-08 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for adjustment disorder with mixed anxiety, depressed mood, and headaches, evaluated as 50 percent disabling prior to April 7, 2009 and as 70 percent disabling on and after April 7, 2009. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to March 1973. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied a claim for a rating greater than 30 percent. In a November 2005 rating decision the RO increased the rating for the Veteran's service-connected adjustment disorder with mixed anxiety, depressed mood, and headaches from 30 percent to 50 percent effective March 30, 2004; the date of the Veteran's claim for an increased rating. In November 2011 the Board issued a decision granting a rating not to exceed 70 percent beginning April 7, 2009 for the Veteran's service-connected adjustment disorder, but denied a rating in excess of 50 percent prior to April 7, 2009. In a September 2012 Joint Motion for Remand (JMR) the Court of Appeals for Veterans Claims (Court) found the Board provided an inadequate statement of reasons or bases for its decision in violation of 38 U.S.C.A. § 7104(d) and in turn vacated and remanded the portion of the Board's decision denying a rating in excess of 50 percent prior to April 7, 2009 and a rating in excess of 70 percent after April 7, 2009. There is evidence in the record to raise an informal claim of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). For example, in September 2004 the Veteran's private physician submitted a letter indicating the Veteran was unemployable at that time. The Court has held that a claim for TDIU can be inferred as part of the original claim for a higher initial rating in certain circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as discussed in the March 2011 remand by the Board, this case differs. In pertinent part, Rice held that a TDIU claim is part of the increased rating claim on appeal to the Board where the TDIU claim is based solely upon the disability or disabilities which are subject of the increased-rating claim (emphasis added). In this case, there are other service-connected disabilities which are not on appeal to the Board, so the Board lacks jurisdiction over the TDIU claim. Therefore, in the circumstances of this case, the Board declines to apply Rice and take jurisdiction over a TDIU claim, and, instead, REFERS the TDIU to the RO for further action. For reasons that will be discussed below 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 Veteran is seeking an increased rating and retroactive payment for his service- connected adjustment disorder. The Veteran is currently evaluated as 50 percent disabling prior to April 7, 2009 and as 70 percent disabling on and after April 7, 2009. The Veteran asserts he is unemployable due to his service-connected condition. In April 2013, after the September 2012 JMR, the Veteran submitted additional documentation in support of his claim. This documentation included several letters from Dr. W.G. and an April 2013 letter from Dr. G.W. These letters constitute new evidence and have not been previously considered by the RO. However, in June 2013 the Veteran's representative submitted a waiver of RO consideration. As such, this evidence may be properly considered by the Board. The Board notes that in his April 2013 letter Dr. G.W. stated he had treated the Veteran ever since April 2011. The claims file only includes treatment records from Dr. G.W. from April and September 2011. However, the Board finds the physician's April 2013 letter suggests ongoing treatment. Review of the record reveals no attempt has been made to obtain any treatment records from Dr. G.W. after September 2011. These ongoing treatment records, if available, would be highly probative in determining the current severity of the Veteran's service-connected adjustment disorder. As such, the Board finds remand is required to obtain these private treatment records and associate them with the claims file. Additionally, the Board notes the most recent VA examination regarding the Veteran's service-connected adjustment disorder is from June 2011, more than two years earlier. As such, the Board finds a more recent VA examination is required to evaluate the nature and severity of the Veteran's current service-connected adjustment disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain updated copies of all private psychiatric treatment the Veteran has received, to include treatment records from Dr. G.W. after September 2011. All efforts to obtain these private records should be fully documented, and a negative response must be provided if records are not available. 2. After completing the foregoing, provide the Veteran with a VA examination to evaluate the nature and severity of his service-connected adjustment disorder with mixed anxiety, depressed mood, and headaches. The claims folder must be made available to the examiner for review in conjunction with the examination. Any required tests and studies must be accomplished, and clinical findings must be reported in detail and correlate to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided. 3. Then readjudicate the appeal. If the increased rating claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). 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). _________________________________________________ MICHELLE L. KANE 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).