Citation Nr: 1325392 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-37 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased disability rating for schizoaffective disorder, currently evaluated 50 percent disabling 2. Entitlement to a total disability rating based on individual unemployability (TDIU) REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1978 to September 1979. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Original jurisdiction in this case is currently with the RO in New Orleans, Louisiana. The Veteran testified at a Board hearing before the undersigned in July 2010. A transcript of the hearing has been associated with the Veteran's VA claims file. At this July 2010 hearing, the Veteran testified that he last worked in December 2009, and that he has not been able to keep jobs because of problems with stress and working with other people. See the Board Hearing Tr. at 6-8. The U.S. Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is part of an increased rating claim or the appeal of an initial rating when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Based on the above-referenced testimony and the Court's holding in Rice, the Board finds that the question of whether a higher rating may be warranted based on entitlement to TDIU has been raised by the record, and is now part of the Veteran's appeal. For the sake of clarity, the Board has separately listed this issue above. Also at the July 2010 hearing, the Veteran asserted that he experiences numbness on the side of his head and back from injuries sustained during service. See the Board Hearing Tr. at 10. It appears the Veteran is requesting that service connection be awarded for these claimed conditions. As such, the matters are referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of issues not yet adjudicated by the RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board regrets having to delay adjudication of the Veteran's claims at this time. However, for the reasons noted immediately below, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. At the July 2010 hearing, the Veteran indicated that he only receives treatment for his schizoaffective disorder from the VA Medical Center in New Orleans, and that he last received treatment from this facility about one month prior to the hearing. Significantly however, the record only contains VA treatment records dating through November 2007. Therefore, on remand, the Veteran's ongoing VA medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (finding that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The record also contains a letter from the Veterans Health Administration (VHA) dated November 30, 2012 indicating that the Veteran participated in Intensive Therapy and/or a Compensated Work Therapy Program with VA under the provisions of 38 U.S.C.A. § 1718 beginning in November 2012. On remand, any records associated with the Veteran's participation in this program or programs should also be requested and obtained. In addition, VA last evaluated the Veteran's psychiatric disability over five years ago in November 2007. At the time, the Veteran was observed to be functioning satisfactorily, with only intermittent inability to perform occupational tasks, posing no threat to himself or others. He was assigned a Global Assessment of Functioning (GAF) score of 60-65. See the November 2007 QTC fee-based examiner's report, at 3. Significantly, at the July 2010 hearing, the Veteran competently testified that his disability worsened in severity since the time of his last examination, to include experiencing increased paranoia, homicidal thoughts and hearing voices. Although a new VA examination is not warranted based merely upon the passage of time (see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)), the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). So it is in this case. Finally, as detailed in the Introduction above, the Veteran testified in July 2010 that he last worked in 2009, but had to stop due to stress and trouble working with others. The Board finds that based on this testimony, the issue of TDIU is reasonably raised. Thus, on remand the RO should incorporate consideration of whether the Veteran is entitled to a TDIU award in its readjudication of the Veteran's claim for a higher disability rating for his service-connected schizoaffective disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all relevant VA treatment the Veteran has received for his schizoaffective disorder from VA's medical facilities in New Orleans that are not already associated with the claims file, dating from November 2007 to the present day. Efforts to obtain these records should be memorialized in the Veteran's claims file. If any requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Request and obtain copies of records associated with the Veteran's participation in VA's Intensive Therapy and/or a Compensated Work Therapy Program under the provisions of 38 U.S.C.A. § 1718. 3. After completion of the development described in items (1) and (2) above, schedule the Veteran for a VA psychiatric examination for the purposes of assessing the nature and severity of his schizoaffective disorder. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA), and a copy of this REMAND should be made available and be reviewed by the examiner in conjunction with his or her respective examination, and the examiner should confirm that such records were available and reviewed. All signs and symptoms of the service-connected schizoaffective disorder should be reported in detail. Any other tests and studies deemed helpful by the examiner should be conducted. In particular, the examiner should comment on the Veteran's work history and the impact his schizoaffective disorder has, if any, on his ability to secure or follow a substantially gainful occupation. The examiner should also describe the impact of the Veteran's psychiatric disorder on his social functioning. A complete rationale should be provided for all expressed opinions. 4. Then, the record should again be reviewed. If the benefits sought on appeal remain denied, in whole or in part, then the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond thereto. 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). 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). _________________________________________________ Laura H. Eskenazi 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).