Citation Nr: 1326148 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 07-28 090A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1991 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In March 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in September 2007. His case is currently under the jurisdiction of the VA RO in Chicago, Illinois. In February 2012, the Board remanded the Veteran's claim of entitlement to TDIU to the Appeals Management Center (AMC) for further evidentiary development, including obtaining the Veteran's vocational rehabilitation folder and Social Security Administration (SSA) records and providing him with new VA examinations. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained the Veteran's SSA records and attempted to obtain his vocational rehabilitation folder. A March 2012 Formal Finding of Unavailability indicated that the AMC took all appropriate steps, but was unable to locate the vocational rehabilitation folder. Additionally, the Veteran was provided new VA examinations to evaluate his service-connected psychiatric, respiratory, and lumbar spine disabilities and scar in March 2012 with a November 2012 addendum opinion on his psychiatric disability. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the Veteran's claims file, the Board finds that additional evidentiary development is necessary prior to the adjudication of his claim of entitlement to a TDIU. The Veteran has claimed that he is unemployable primarily due to his service-connected major depressive disorder (MDD) with anxiety. Since the most recent VA examination to evaluate his MDD and employability in March 2012, the Veteran has been hospitalized for an attempted suicide in April 2013. Although he returned to work shortly after his discharge from the hospital, he claimed in a July 2013 statement that he had to end his employment in June 2013 due to his depression. As the Veteran has claimed that his psychiatric disability has worsened to the point of precluding employment and his April 2013 hospitalization suggests the same, the AMC's development and adjudication of the claim for TDIU must include a new VA examination to evaluate the current severity of this disability and specifically address the impact (if any) of this disability on his employability. Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). Additionally, the Board notes that there may be outstanding private and VA treatment records. An April 2013 VA treatment record indicates that the Veteran was first seen for his attempted suicide at St. Francis Hospital before being transferred to the Danville VA Medical Center (VAMC). However, the claims file is negative for any April 2013 treatment records from St. Francis Hospital and no attempt appears to have been made to obtain these treatment records. On remand, the Veteran should be asked to complete a release of information for these records, and any such available records should be associated with the Veteran's claims file. Also, on remand, the AMC should obtain and associate with the claims file any outstanding VA treatment records, particularly from his April 2013 psychiatric hospitalization at the Danville VAMC. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the Danville VA Medical Center and any other VA facility identified by the Veteran should be obtained and added to the claims folder. The Board is particularly interested in the treatment records from the Veteran's 2-week psychiatric hospitalization at the Danville VAMC. 2. Contact the Veteran and ask him to provide a signed release of information for treatment records from St. Francis Hospital for psychiatric treatment received in and after April 2013, in addition to any other facilities or treatment providers that have provided treatment that is relevant to the Veteran's remanded claim. If the Veteran returns completed release(s) of information, the AMC should obtain these records and associate them with the claims file. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected MDD. The claims folder must be made available to the examiner for review in connection with the examinations. The examination report must reflect that such a review was conducted. All indicated studies and tests should be completed. All pertinent psychiatric pathology shown on examination should be annotated in the VA evaluation reports. In addition, the examiner should opine as to whether the Veteran is unable to secure or maintain substantially gainful employment solely as a result of the service-connected MDD. A complete rationale must be provided for any opinion provided. 4. Then, readjudicate the claim for TDIU. If this issue is denied, a supplemental statement of the case should be issued to the Veteran and his representative, they should be given adequate time to respond, and the claim should thereafter be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of him until further notice. However, the Board advises him that the conduct of the efforts as directed in this remand, and any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2012). This claim 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).