Citation Nr: 1330036 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-18 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for major depressive disorder. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from April 1969 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A March 2010 rating decision granted service connection for depression as secondary to the service-connected disability of left knee meniscectomy residuals including posttraumatic degenerative arthritis. Here, the Board will refer to the service-connected disability of left knee meniscectomy residuals including post traumatic degenerative arthritis as a left knee disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, as will be discussed below, the increase in the initial rating claim, for the Veteran's major depressive disorder, is on appeal and the Board concludes that the Court's holding in Rice is applicable, and thus, the Veteran's TDIU claim is properly before the Board, and the issue has been listed on the title page. 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 Veteran contends that his service-connected major depressive disorder is more severe than is contemplated by the initial assigned 10 percent rating. Specifically, on his October 2010 notice of disagreement, the Veteran indicated that his depression is not controlled and is worsening. He states that his depression has begun to scare him with the unpredictable nature of its symptoms. His new symptoms, which he had not experienced before, include staring into nothing without warning, feeling sad, useless and hopeless, and crying. When the evidence indicates that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). See also Weggenmann v. Brown, 5 Vet. App. 281 (19973); Green v. Derwinski, 1 Vet. App. 121 (1991). Additionally, the February 2010 VA examination reflects that the Veteran's depression disorder is related to his service-connected left knee condition but that the Veteran suffers from a multitude of other mental and emotional problems due to his childhood, including panic attacks, posttraumatic stress disorder, and generalized anxiety disorder. The February 2010 VA examination states that that only a portion of the Veteran's mental condition is related to his left knee disability. Thus, the VA examiner must attempt to differentiate the nature or extent of the major depressive disorder that is attributable to the service-connected left knee disability as opposed to any mental disorder due to the Veteran's childhood or other causes. However, the Board emphasizes that if it is not possible to distinguish the effects of the service-connected major depressive disorder alone from any mental disorder, the reasonable doubt doctrine dictates that all psychiatric symptoms be attributed to the Veteran's service-connected left knee disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a non service-connected disorder, VA must consider all of the symptoms in the adjudication of the claim). The evidence shows the Veteran has sought psychiatric treatment. Specifically, a VA treatment record, dated August 2010, notes the Veteran sought private psychiatric treatment. Thus, the Veteran should be provided VA Form 21-4142, Authorization and Consent to Release Information, for this provider and any additional records should be obtained and associated with the claims folder. 38 C.F.R. § 3.159(c)(1). Additionally, it appears that the Veteran receives regular treatment at the VA Medical Center (VAMC) in White City, Oregon. Updated treatment records, since April 2012, should be obtained. 38 C.F.R. § 3.159(c)(2). Finally, the Veteran provided a June 2012 statement, in which he described that he is no longer employed. He stated that he is no longer driving the shuttle bus, as he was during the February 2010 VA examination, and he was not returned to that or any job because he does not know when a wave of anger, anxiety or sadness will hit him. He further states that he used to write books and magazine articles but he no longer can engage in those activities due to memory problems and sleeplessness. Thus, the Board finds that the issue of entitlement to TDIU has been raised by the record, as noted in the Introduction. A request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice, 22 Vet. App. at 453. If the Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. As the RO has not yet considered whether the Veteran is entitled to TDIU, the issue must be remanded to the RO for initial adjudication. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). The Board notes that the Veteran currently does not meet the schedular criteria for a TDIU. However, TDIU can also be granted on an extraschedular basis. 38 C.F.R. § 4.16(b). Therefore, the RO should send a notice letter to the Veteran for his TDIU claim. This letter should notify the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim. The notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159. Moreover, as the record does not contain a current, adequate medical opinion, based upon a thorough review of the record, regarding whether the Veteran's service-connected major depressive disorder causes him to be unemployable, such an opinion must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Issue a new notice letter to the Veteran and his representative. This letter should contain notice of the information and evidence necessary to substantiate a claim for a TDIU and the manner in which disability ratings and effective dates are assigned for awards of disability benefits. The Veteran and his representative should be given an opportunity to respond to this notice, and any additional information or evidence received should be associated with the claims file. 2. Obtain the necessary authorization from the Veteran and then attempt to obtain additional psychiatric records, noted in the August 2010 VA treatment record, and associate them with the claims folder. All attempts to obtain these records must be documented in the claims file. The RO must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505(a), Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B) (West 2002 & Supp. 2012)). 3. Obtain the Veteran's treatment records since April 2012 from the White City, Oregon VAMC and any associated outpatient clinic and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 4. Thereafter, schedule the Veteran for a VA psychiatric examination. The complete record, to include a copy of this Remand, the claims folder and Virtual VA records, must be made available to and reviewed by the examiner in conjunction with the examination: a. The examiner must comment on the frequency and the severity of the psychiatric symptomatology attributable to the Veteran's service-connected major depressive disorder. The VA examiner should expressly state which of the Veteran's psychiatric symptomatology are due to his service-connected major depressive disorder, without regard to any non service-connected psychiatric disorders which may be diagnosed. Furthermore, the VA examiner should provide an opinion as to the Veteran's GAF score due, solely, to his service-connected major depressive disorder without regard to any non service-connected psychiatric disorders which are diagnosed. b. The examiner is also asked to obtain a complete occupational history from the Veteran, and to provide an opinion as to whether it is at least as likely as not (50 probability or more) that the Veteran's service-connected disabilities (depression associated with left knee disability 10 percent, left knee disability 10 percent, low back pain associated with left knee disability 10 percent and left knee scar 10 percent), without consideration of his non service-connected disabilities and without regard to his age, preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. The term at least as likely as not does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 5. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ ROBERT C. SCHARNBERGER 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).