Citation Nr: 1332160 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-08 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for major depressive disorder (MDD) with alcohol abuse. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1968 to March 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The August 2011 rating decision on appeal granted service connection for major depressive disorder with alcohol abuse, and assigned a 30 percent initial rating effective from January 14, 2011. In a January 2013 statement of the case (SOC) determination, the RO denied entitlement to a TDIU. 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 In Rice v. Shinseki, the Court held that a TDIU claim is not 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. The Veteran filed an application for a TDIU dated in August 2011. Additionally, the issue of whether or not the Veteran is unemployable due to service-connected disability has been reasonably raised by the record. Specifically, in a December 2010 letter, the Veteran's private physician opined that he considered the Veteran permanently and totally disabled and unemployable due to psychiatric disability, including dysthymic disorder. Additionally, the May 2011 VA examination report reflects that the Veteran's psychiatric symptoms cause occupational and social impairment. As noted above, the issue of entitlement to a TDIU was adjudicated by the RO in a SOC issued in January 2013. However, the record is insufficient for the Board to make a determination as to TDIU. Thus, a remand is required. In this regard, the record is unclear as to whether the Veteran is currently working. Also, a VA clinical opinion as to whether the Veteran's service-connected disability precludes substantially gainful employment consistent with his education and occupational experience would be useful in adjudicating entitlement to a TDIU. Additionally, a November 2011 private treatment note from reflects that the Veteran has been receiving Social Security Disability (SSD) payments for the previous two years. 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. 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 disability benefits, to include a copy of all SSA disability benefits adjudication, and clinical records upon which such determination was based. The RO should document all attempts to obtain these records. 2. Contact the Veteran and request that he identify the name, address and dates of treatment, for all medical providers of psychiatric treatment since September 2011, and obtain any necessary authorization from the Veteran. Attempt to obtain all identified records for inclusion in the claims folder, to include private treatment records and any VA clinical records since September 2011, involving treatment relating to the Veteran's service-connected psychiatric disability. A copy of any letter sent to any private providers, and any reply, including all records obtained, should be included in the claims file. If the RO/AMC is unable to obtain any identified records, then it must notify the Veteran in writing and provide him an opportunity to respond. 3. The Veteran should be provided a VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability," for completion and return to VA. 4. After the above is accomplished, and regardless of whether the RO/AMC determines that the Veteran is, or is not, substantially and gainfully employed, schedule the Veteran for a VA examination. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All necessary tests should be conducted and the examiner is requested to review all pertinent records associated with the claims file. Thereafter, the examiner should determine and report the nature and severity of the service-connected disability at issue, to include all manifestations thereof, and degree of functional impairment resulting therefrom, to include the impact of the Veteran's service-connected disability on his ability to work and social functioning. The examiner is asked to obtain a complete occupational history from the Veteran, if possible, and to provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's service- connected disability, without consideration of his non-service-connected disabilities and without regard to his age, renders him unable to secure or follow a substantially gainful occupation consistent with his educational and occupational experience. A complete rationale for the opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 6. After completion of the above and any other development the RO/AMC should deem necessary, the RO should review the expanded record and readjudicate the issues on appeal, based on all of the evidence of record, including that received into the record since preparation of the most recent supplemental statement of the case. If any benefit sought is not granted, the Veteran should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran 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). _________________________________________________ U.R. POWELL 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).