Citation Nr: 1327732 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-14 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for dementia, to include as secondary to service-connected psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 28, 2007. 3. Entitlement to TDIU beginning March 28, 2007. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), to the extent that it denied TDIU. That issue has been timely appealed. A more complete recitation of procedural history of this case is contained in the Introduction section of the Board's March 2011 decision. The Board notes that Board decision denied entitlement to TDIU prior to March 28, 2007; however, it remanded an intertwined service connection for dementia issue and entitlement to TDIU from March 28, 2007 forward. The development requested for those two issues was completed and those claims have been returned to the Board at this time for further appellate review. The Board's denial of TDIU, however, was appealed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 memorandum decision, the Court vacated the Board's March 2011 decision with respect to the TDIU denial prior to March 28, 2007 and remanded it back to the Board with specific development instructions. The case is before the Board at this time in compliance with that memorandum decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND With regards to the dementia and TDIU issue as of March 28, 2007 forward, the Board notes that the VA examination instructed by the March 2011 remand was obtained in May 2011. The examiner answered the three specific questions posed, but gave no rationale for those opinions. As such, the Board finds that those opinions are inadequate. A remand is necessary in order to obtain appropriate and adequate answers to the questions posed in the March 2011 remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). In the January 2013 memorandum decision, the Secretary of the Department of Veterans Affairs (Secretary) conceded that the Board erred in not obtaining a retroactive medical opinion prior to adjudicating the TDIU issue prior to March 28, 2007, with specific regards to whether an examiner, after review of the relevant documents relied on by the Board, would have precluded substantially gainful employment. In light of the Board's remanding for another VA examination with regards to dementia as noted above, the Board asks that the VA examiner who performs that examination to give the requisite retroactive opinion as well. Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Lexington VA Medical Center, or any other VA medical facility that may have treated the Veteran, since July 2011 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his service-connected psychiatric disorder and/or dementia, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Following the completion of the above to the extent possible, schedule the Veteran for a VA psychiatric examination to determine whether any other psychiatric disorders, to include dementia, with distinct and separate symptomatology are related to service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders found, to include the service-connected psychiatric condition variously diagnosed as dysthymic, anxiety and/or major depressive disorders, as well as dementia. The examiner should indicate all symptomatology associated with each individually diagnosed psychiatric disorder, to the best of the examiner's ability, and provide a Global Assessment of Functioning score. E.g., the examiner should note all of the symptomatology associated with the Veteran's service-connected psychiatric disorder, and then indicate all of the symptomatology associated with dementia, if such is diagnosed. Any overlapping symptomatology, or symptomatology which cannot be isolated or separated as being associated with a specific psychiatric disorder, should be specifically noted by the examiner. For any diagnosed psychiatric disorder other than his service-connected psychiatric disorder-including dementia-the examiner should determine the following: (a) Whether it is more likely, less likely, or at least as likely as not (50 percent or greater probability) that it is related to military service. (b) Whether it is more likely, less likely or at least as likely as not that it is caused by or related to the Veteran's service-connected psychiatric disorder, to include due to self-medicating himself with alcohol. (c) Whether it is more likely, less likely, or at least as likely as not that the Veteran's dementia, or any other psychiatric disorder not already service-connected, is aggravated (i.e., made permanently worse beyond the normal progression of that disease) by his service-connected psychiatric disorder. If aggravation is demonstrated, the examiner should state a baseline level of disability and quantify the amount of aggravation to the extent possible, considering earlier medical evidence of record as a point of comparison, and also considering the Veteran's statements as to current and past symptoms. With regards to TDIU, the Board asks that the examiner render the following opinions: (1) Prior to March 28, 2007: The examiner should review all of the documentation in the claims file prior to March 28, 2007, and on the basis of that review, render an opinion whether the Veteran's service-connected psychiatric disorder precludes him from obtaining and maintaining substantially gainful employment. The examiner should additionally review and discuss Dr. C.L.R.'s January 2006 and October 2010 letters asserting that the Veteran was unemployable since 2005. Unemployability should be assessed without regard for nonservice-connected disabilities or age. If the examiner believes that the Veteran is in fact unemployable during this period, the examiner should point to specific treatment records and specific dates of treatment in order to support his/her opinion. (2) From March 28, 2007 to Present: The examiner should review all the documentation since March 28, 2007, any examinations including Dr. C.L.R.'s October 2010 letter, as well as the current examination performed in conjunction with this opinion. The examiner should then opine whether the Veteran's service-connected psychiatric disorder precludes him from obtaining and maintaining substantially gainful employment. Unemployability should be assessed without regard for nonservice-connected disabilities or age. If the examiner believes that the Veteran is in fact unemployable during this period, the examiner should point to specific treatment records and specific dates of treatment in order to support his/her opinion. (3) If the examiner finds that the Veteran's dementia is not service-connected and/or otherwise related to or aggravated by his service-connected psychiatric disorder but is the cause of his unemployability, the examiner should specifically delineate which separate and distinct psychiatric symptomatology associated with his dementia makes him unemployable. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for dementia and the two separate claims for TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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). _________________________________________________ J. A. MARKEY 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).