Citation Nr: 1333331 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-18 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 70 percent for service-connected depressive disorder prior to December 30, 2010, and in excess of 50 percent from December 30, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted an increased disability rating of 50 percent for the Veteran's service-connected depressive disorder effective December 10, 2007. A Travel Board hearing was held in July 2009 with the Veteran in Cleveland, Ohio, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board subsequently remanded the matter for additional development in January 2011, as well as adjudication of the Veteran's claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2011, the Board issued a decision on the matter, which was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2013 Memorandum Decision, the Court vacated and remanded the matter. 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 entitlement to an increased disability rating for his service-connected depressive disorder, as well as entitlement to TDIU. In its April 2013 Memorandum Decision, the Court held that the Board erred by failing to obtain records from the Social Security Administration (SSA) related to a claim the Veteran filed for disability benefits, based in part on his service-connected psychiatric disability. No clear determination as to the availability of any records which may have been in the possession of the SSA has been made. Accordingly, on remand, the RO should attempt to obtain any available SSA records, including any medical records the Veteran submitted in support of his claim. See Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002) (possibility that SSA records could contain relevant evidence cannot be foreclosed absent a review of those records). Additionally, it appears that VA outpatient treatment records after June 2010 have not been associated with the Veteran's claims folder. On remand, the Veteran's most current VA treatment records should be obtained. Finally, the Veteran has not been afforded a VA examination of his depressive disorder since August 2010, more than three years ago. Where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Once the requested SSA and VA records have been associated with the Veteran's claims file, the Veteran should be scheduled for a new VA examination of his service-connected acquired psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain records from the Social Security Administration (SSA) related to the Veteran's claim for disability benefits and associate these records with the Veteran's claims folder. If these records cannot be obtained, a formal finding of unavailability should be placed of record. 2. Associate the Veteran's VA outpatient treatment records after June 2010 with his claims folder. 3. Once this is done, the RO should schedule the Veteran for a VA examination of his depressive disorder. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable 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). 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). _________________________________________________ S. L. Kennedy 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).