Citation Nr: 1328578 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-37 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for bronchial spasm and reactive airway disease with allergic component. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from April 1995 to September 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2009 and April 2010 rating decisions by the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA). Hearings on these matters were conducted on March 3, 2010; September 2, 2010; and October 4, 2012. The hearing transcripts are of record. The case was remanded for additional development in December 2010 and January 2013. 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 The January 2013 remand directed that the Veteran be asked to identify all non-VA treatment providers who have treated him for his service-connected respiratory disorder and psychiatric disorder since service. It also directed that records from Middlesex Hospital since February 2010 be obtained, pending written authorization from the Veteran. The Veteran has not been asked to identify all non-VA treatment providers who have treated him for his respiratory disorder and psychiatric disorder. Additionally, although the Veteran provided written authorization to obtain his records from Middlesex Hospital, the records have not been requested. Remand is therefore required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2008, the Veteran asserted that he was treated at "Virginia Beach Hospital" approximately one week after the incident for respiratory distress secondary to aspirated hydraulic fluid. The record does not contain any treatment records from this facility. These records may be of use in verifying the Veteran's military stressor and an attempt to obtain them must be made. 38 C.F.R. § 3.159(c)(1). The Veteran received a VA mental disorders examination in May 2013. The examiner stated that the Veteran has depression which is secondary to his "physical debility," but did not identify the specific conditions causing the depression, or state whether it is caused or aggravated by a service-connected disability. Clarification must be sought upon remand. During a May 2013 VA respiratory disorders examination, the examiner stated that the Veteran would have "trouble performing a physical or sedentary job with [his] current symptoms." The examiner's findings do not fully indicate the extent to which the Veteran's respiratory symptoms affect his employability. Specifically, the opinion does not answer the question of whether or not he can engage in "substantially gainful employment" as contemplated by 38 C.F.R. § 4.16(b). The question must be addressed. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by the Veterans Claims Assistance Act of 2000 (VCAA) are fully complied with and satisfied with respect to a claim for service connection for a psychiatric disorder on a secondary basis. 2. Ask the Veteran to identify all non-VA medical care providers who have treated him for his service-connected respiratory disorder and psychiatric disorder since service. After securing any necessary release(s), obtain those records. The Veteran must also be asked to provide written authorization to obtain records related to his military stressor from Virginia Beach Hospital. If records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records. 3. Obtain all records from Middlesex Hospital since February 2010. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow him the opportunity to obtain the records. 4. After the aforementioned development has been completed, return the claim file to the May 2013 mental disorders examiner, if available. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to state whether the Veteran's service-connected respiratory disorder, or any other disorders that are service-connected during the development of the claim, caused or aggravated his depression. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If the previous examiner is not available, schedule the Veteran for another VA mental disorders examination. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not that any psychiatric disorder is at least as likely as not related to his active military service, or, alternatively, caused or aggravated by a service- connected disability. All opinions must be set forth in detail and explained in the context of the record. For all disabilities determined to be service- connected, the examiner must state whether it is of such severity as to preclude the Veteran's ability to maintain substantially gainful employment. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Develop the increased rating claim and claim for service connection. The AOJ must determine whether an additional VA respiratory disorders opinion is needed to decide the claims, considering any additional private or VA records that may be received. Then, readjudicate the claims. 6. Following a decision on the increased rating claim and claim for service connection, schedule the Veteran for a VA examination in connection with his claim for a TDIU. The claim folder must be reviewed in conjunction with the examination. The examiner is to determine the extent to which all of the Veteran's service- connected disabilities, currently bronchial spasm and reactive airway disease at 30%, affects his ability to obtain or retain substantially gainful employment, without regard to his age or nonservice connected disabilities. If any claims for service connection are granted, these disorders also will need to be considered in determining their effect on his employability. Thus, the examiner must be advised of all service-connected disabilities prior to rendering his/her opinion on the issue of employability. A complete rationale for all opinions expressed must be provided. 7. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case 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 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. See 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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) (2013).