Citation Nr: 1333428 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-27 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for paranoid schizophrenia. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities ("TDIU"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to July 1995. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Winston-Salem, North Carolina, which denied the claims. In a statement received in July 2009, the Veteran indicated that he wished to be scheduled for a local Travel Board hearing before a Veterans Law Judge. However, in a July 2012 statement, the Veteran withdrew his request for a hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). 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 on his part. REMAND Entitlement to a disability rating in excess of 30 percent for paranoid schizophrenia. Under the Veterans Claims Assistance Act of 2000 ("VCAA"), Public Law No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)), VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). While the VCAA duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted (see VAOPGCPREC 11-95), the United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In this case, although the Veteran was initially scheduled for a VA examination in 2008, because he was incarcerated, the examination could not take place. Moreover, due to the fact that he was incarcerated at the time service connection was actually granted, he was never afforded a previous examination and instead, service connection was based in part on a medical opinion. Subsequent information of record, however, indicates that the Veteran was scheduled for release/parole on October 7, 2013. See letter from North Carolina Department of Corrections, February 2009. In addition, he has repeatedly claimed an increase in the symptomatology associated with his service-connected paranoid schizophrenia, including a worsening of hallucinations. As it appears that there may have been an increase in the symptomatology associated with the Veteran's disability, but there is not sufficient evidence of record to make a decision on the issue, the Board finds that a new examination is warranted to determine the current severity of his paranoid schizophrenia. In addition, it appears that the most recent mental health treatment reports of record are dated February 2008. Accordingly, while the case is in REMAND status, an attempt should be made to obtain any mental health treatment records since that date. Entitlement to TDIU The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). In this case, although the Veteran does not currently qualify for a TDIU because his service-connected disabilities do not meet the schedular requirements for entitlement to TDIU, the Board finds this issue to be inextricably intertwined with the issue of entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected paranoid schizophrenia. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review). Therefore, the Board cannot fairly proceed in adjudicating the TDIU issue until any outstanding matters with regard to the disability rating for the Veteran's paranoid schizophrenia have been resolved. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for his paranoid schizophrenia since February 2008, to include those from the North Carolina Department of Corrections. After securing the necessary authorizations for release of this information, the RO/AMC should seek to obtain copies of all treatment records referred to by the Veteran that are not duplicates of records already contained in the claims folder. Provided that the necessary release forms are completed and returned, attempt to obtain the identified records. 2. Following completion of the aforementioned, schedule the Veteran for a VA examination with a qualified examiner to determine the current severity of his paranoid schizophrenia. The complete claims folder should be provided to the examiner in conjunction with the examination and the examiner must note that the claims folder has been reviewed. The clinician should perform an appropriate examination as well as any diagnostic tests deemed appropriate. The examiner should elicit from the Veteran a history of symptomatology associated with the condition and note that, in addition to the medical evidence of record, the Veteran's statements have been considered. To the extent possible, the examiner should separate symptoms due to paranoid schizophrenia from those due to any other psychiatric disorder diagnosed. If this cannot be done, the examiner should so indicate. The examiner is also asked to assign a Global Assessment Functioning ("GAF") score to the Veteran. If possible, the examiner should assign a GAF score attributable only to the Veteran's paranoid schizophrenia. The GAF score should be interpreted as it pertains to social and industrial adaptability. Any and all opinions must be accompanied by a complete rationale. The examiner should specifically describe the effects of the Veteran's service-connected paranoid schizophrenia disability on his occupational functioning and daily activities of life. A complete rationale for all opinions expressed must be included in the examination report. 3. Ensure that the information provided in the examination report satisfies the criteria above and, if not, return the report as insufficient. Then readjudicate the Veteran's claim after ensuring that any other development deemed warranted is complete. If the benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant 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). _________________________________________________ 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).