Citation Nr: 1330237 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-02 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for major depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service from March 1982 to September 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 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 is seeking an increased rating above 50 percent for his service connected major depressive disorder. In his Informal Hearing Presentation as well as his September 2011 Notice of Disagreement the Veteran reported that his mental disorder was a major contributing factor in obtaining Social Security Disability (SSD) benefits. However, the record does not contain a Social Security Administration (SSA) benefits determination related to disability benefits. The records related to any SSA determination are not associated with the claims file. VA must attempt to obtain relevant records from a Federal department or agency unless further attempts would be futile. These records include medical and other records from SSA. See 38 C.F.R. § 3.159(c)(2). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the US Court of Appeals for Veterans Claims (CAVC) found that VA's duty to assist specifically includes requesting information from other Federal departments. In Baker v. West, 11 Vet. App. 163, 169 (1998), CAVC further stated that VA is required to obtain evidence from other agencies, including decisions of the SSA. Therefore, the Board finds that remand is necessary to obtain the outstanding SSA records. The Veteran has been receiving VA treatment for several years. The most recent treatment records in the file are from August 2012. VA treatment records dated form August 2012 to the present should be obtain and associated with the file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, while receiving VA treatment in April 2012, the Veteran reported that his depression had gotten worse since his last exam with increased frequency and severity of symptoms including increasing thought of suicide. Accordingly, a remand is warranted for a VA examination in order to assess the current severity of the Veteran's service-connected major depressive disorder. Weggenmann v. Brown, 5 Vet. App. 281 (1993). In Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In this case the record reasonably raises the issue of entitlement to TDIU. The Veteran has asserted that his service-connected psychiatric disability was a major contributing factor in obtaining a favorable decision on his claim for Social Security Disability benefits. Additionally, at the VA examination in June 2011, the examiner noted that the Veteran had not worked since September 2007 because of emotional difficulties, substance abuse, chronic pain issued, and hearing difficulty. The Veteran is currently service-connected for major depressive disorder, arthritis of a finger join, hearing loss, and tinnitus. Based on the above, the Board finds that the issue of entitlement to TDIU has been raised by the record. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the file all records related to the Veteran's claim for SSA benefits, to include copies of any SSA adjudication. The RO should document all attempts to obtain these records. 2. The RO/AMC should obtain all records from the VA Medical Center in Beckley, West Virginia, and any associated outpatient clinic dated from August 2012 to the present. All attempts to obtain records must be documented in the claims file. 3. The RO/AMC should also schedule the Veteran for a VA mental health examination to determine the nature and severity of his major depressive disorder. The claims folder should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (major depressive disorder, arthritis of a finger, hearing loss, and tinnitus) either alone, or in combination, make him unable to secure or follow a substantially gainful occupation. When formulating this opinion, the examiner should ignore the effects of the Veterans age and any non-service connected disabilities. A complete rationale for any opinion offered must be provided. 4. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the claims for entitlement to a rating above 50 percent for major depressive disorder and entitlement to TDIU. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). 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). _________________________________________________ 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 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).