Citation Nr: 1326249 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-00 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating higher than 20 percent (excluding periods of temporary total rating) for arthritis and remote anterior cruciate ligament injury, right knee (right knee disability). 2. Entitlement to a rating higher than 50 percent for depression. 3. 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 Adrian Jackson, Counsel INTRODUCTION The appellant is a Veteran that served on active duty from January 1980 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In this decision, the RO denied a higher rating for the right knee disability; granted a higher rating of 50 percent for major depression; and denied entitlement to a TDIU. Although the RO granted a higher rating for major depression, the Veteran has continued his appeal of this claim. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible ratings for these disabilities, for all times at issue, unless he expressly indicates otherwise). Due to information provided by the Veteran, 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 record reflects that the Veteran may be in receipt of Social Security Administration (SSA) disability benefits. The record contains a July 2009 mental health clinical note, in which the Veteran reported that he applied for SSA benefits. An August 2009 VA mental health clinical note shows that the Veteran reported that he was in receipt of SSD benefits. He stated that he planned to present the award letter to the VA to strengthen his case. However, at VA examination in February 2012, he reported that he was not in receipt of SSD. The records associated with the Veteran's application for (or award of) Social Security disability benefits are not of record and no attempt to obtain such records has been made. Because the evidence of record is unclear as to whether he is in receipt of SSA records this must be clarified, as per VA's duty to assist. See Golz v. Shinseki, No. 2009-7039 (Fed. Cir. Jan. 4, 2010). In regard to his psychiatric condition, the Veteran has been afforded VA compensation examinations to determine the severity of his psychiatric disorder, in March 2008, February 2010, and February 2012. These medical records contain conflicting findings and conclusions regarding the nature and severity of his psychiatric disorder. VA records contain diagnoses of depression and PTSD. There is no indication in the evidence of record as to how much, if any, of the Veteran's overall psychiatric symptomatology is due to his service-connected depression as opposed to other non-service-connected psychiatric problems. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In regard to his claim for TDIU. During the course of the appeal VA compensation examiners have offered comments on his employability in terms of the effect each individual disability has on his employability (December 2009 regarding right knee and February 2012 regarding depression). However, the VA examiners have not commented on the effect of his combined service connected disabilities on his ability to sustain gainful employment. He is currently service connected for major depression (rated as 50 percent disabling), right knee disability (rated as 20 percent disabling), and duodenal ulcer (rated as 20 percent disabling). Therefore, additional comments are needed. At his February 2012 VA examination the Veteran reported that he had been receiving ongoing VA treatment . A review of the claims file as well as the Virtual VA, the most recently added VA treatment records that have been associated with claims file are dated in October 2009. Therefore the RO should obtain his ongoing VA treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain the Veteran's VA treatment records from October 2009 through the present and associate them with the claims file. If the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. The RO/AMC also should contact the Social Security Administration in order to obtain appropriate information about the application and/or grant of benefits for the Veteran by this agency. All relevant records should be obtained and associated with the claims file. 3. Upon receipt of all additional records, schedule a VA examination to reassess the severity of the Veteran's service-connected depression. The examiner is asked to report on the presence or absence of the specific symptoms in the general rating formula for mental disorders. The examiner should try and reconcile his or her findings and conclusions with those others who have evaluated or examined the Veteran to date. The examiner should comment on the Veteran's diagnosed PTSD, in particular, as to whether it is part and parcel of the Veteran's depression or otherwise etiologically related to his depression. As well, the examiner must comment on the degree, if any, of industrial/occupational and social impairment caused by the service-connected psychiatric disability, including specifically in terms of whether this disability precludes the Veteran from obtaining and maintaining substantially gainful employment given his level of education, prior work experience and training, etc. The claims files must be made available to the examiner for review of the pertinent medical and other history, including a complete copy of this remand. 4. The Veteran should be also scheduled for appropriate VA medical examinations of his additional service-connected disabilities (duodenal ulcer and right knee disability). All necessary tests, as well as any other recommended examinations, should be conducted and all clinical manifestations attributable to each disability should be reported in detail. The examining physicians should be given access to the Veteran's claims file for a sufficient period of time in conjunction with the examinations to allow for a complete review of the record. The examiners should describe in detail the impact, if any, that the Veteran's service-connected disabilities (in combination) have on his employability. *The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, will have detrimental consequences on his pending claims. 38 C.F.R. § 3.655. 5. Then readjudicate the claims in light of the additional evidence. If the claims are not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims. The Veteran has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ K. Parakkal 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).