Citation Nr: 1335796 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-16 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE 1. Entitlement to a rating in excess of 30 percent for adjustment disorder with depressive features. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from January 1962 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Hartford, Connecticut, which continued the assignment of a 30 percent evaluation for adjustment disorder with depressive features. In November 2012, the Veteran and his spouse provided testimony at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing is on file. At the time of the hearing, the Veteran requested that additional VA treatment records be obtained for consideration in his appeal. At such time, records dated through April 2011 were of record. Consequently, the Veterans Law Judge requested that RO staff associate VA treatment records dated from April 2011 to the present with the Veteran's claims file. Thereafter, VA treatment records dated from April 2011 to January 2013 were associated with the Veteran's Virtual VA claims file (a paperless claims processing system) and, in a statement signed in November 2012, he waived RO consideration of such evidence. 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly received evidence. During the November 2012 Board hearing, the Veteran mentioned that he had not been employed for 2 years, and suggested that he did not believe he could work due to manifestations of his psychiatric disorder. Accordingly, as will be discussed further herein, the Board finds that an informal claim seeking entitlement to a TDIU has been raised, as a claim part-and-parcel of the higher disability rating for adjustment disorder with depressive features, and the Board has included this claim on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, a TDIU claim is an element of an initial rating or increased rating). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND A remand is required in conjunction with the Veteran's appeal seeking a rating in excess of 30 percent for adjustment disorder with depressive features, and in conjunction with the informally raised TDIU claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). A review of the evidence indicates that the Veteran last underwent a psychiatric examination conducted by VA in April 2010. At that time, the report indicated that the Veteran had been unemployed for 12 months and felt that he could not get work due to the poor economy. The examiner noted worsening of the Veteran's adjustment disorder as a result of his physical impairments and the death of his son. Chronic adjustment disorder with depressed features was diagnosed and a Global Assessment of Functioning (GAF) score of 61 was assigned. The file contains an undated, but presumably subsequent VA medical record, printed in December 2012, which revealed a diagnostic impression of depressive disorder and documented a GAF score of 50. The disparity on the aforementioned GAF scores was mentioned by the Veteran's representative at the November 2012 Board hearing, at which time it was essentially suggested that a worsening of symptoms was shown by the more recent lower GAF score. The Board observes that a comprehensive VA psychiatric examination has not been conducted for over 3 years. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an indication of a possible increase in severity since the last examination, as is essentially the case here. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Therefore, a new and contemporaneous examination is in order to determine the current manifestations and level of severity associated with the Veteran's service-connected psychiatric disorder. As the case is being remanded, and it appears that the Veteran receives his primary psychiatric treatment through VA (primarily New London, Connecticut, VA Medical Center), records dated from January 2013 forward will be sought and added to the record, prior to readjudication of the claim. In his November 2012 Board hearing testimony, the Veteran initially stated that he believed he could still work if not for his physical limitations (p. 12). However, he shortly thereafter clarified that he did not believe he could work due to manifestations of anger and irritability (p. 13), essentially suggesting that his service-connected psychiatric disorder may be a factor relating to his unemployment. A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. See Rice, 22 Vet. App. at 453-54. Hence, at this point, the claim is potentially viable as a component of the increased disability rating claim for adjustment disorder with depressive features. In this regard, the Board notes that the Veteran is currently service-connected for adjustment disorder with depressive features, evaluated as 30 percent disabling; diabetes mellitus type II with erectile dysfunction, evaluated as 20 percent disabling; left lower extremity diabetic neuropathy, evaluated as 20 percent disabling; right lower extremity diabetic neuropathy, evaluated as 20 percent disabling; post operative scar to the right breast, evaluated as noncompensably disabling; and erectile dysfunction, evaluated as noncompensably disabling. As such, the Veteran currently has a combined disability rating of 70 percent. Accordingly, on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU, be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and the AOJ should obtain all outstanding treatment records regarding his service-connected disabilities. Furthermore, an opinion regarding whether such disabilities, either singularly or jointly, render the Veteran unemployable should be obtained. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. The Veteran also should be given an opportunity to identify any healthcare provider who treated him for his service-connected disabilities, to include his adjustment disorder with depression. After securing any necessary authorization from him, obtain all identified treatment records, to include VA treatment records from the New London, Connecticut, VA Medical Center dated from January 2013 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding treatment records, the AOJ shall schedule the Veteran for a VA psychiatric examination to determine the current manifestations and severity of his adjustment disorder with depressive features. The claims file and a copy of this Remand shall be made available to the examiner in conjunction with the examination and the examiner should indicate that the claims folder was reviewed. All tests deemed necessary by the examiner must be performed, and all findings set forth in detail. It is requested that the VA examiner indicate all the current nature and severity of all symptoms and manifestations attributable to the Veteran's service-connected adjustment disorder with depressive features. In addition, pertinent lay information regarding the nature, frequency and severity of symptoms should be recorded. The findings of the examiner shall address the degree and extent of social and occupational impairment attributable to the Veteran's adjustment disorder with depressive features, to include providing an opinion as to whether he is considered to be totally socially and occupationally impaired due to adjustment disorder with depressive features; deficient in most areas; or impaired to a lesser (specified) degree. In this regard, detailed information regarding his employment history and status, should be recorded. The examiner is also asked to generally comment on the impact of adjustment disorder with depressive features on the Veteran's employment and activities of daily life and to assign a GAF score. A complete rationale for any opinions expressed and conclusions made should be provided. 4. After completing the above, the Veteran's claims file should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, i.e., adjustment disorder with depressive features, diabetes mellitus type II with erectile dysfunction, left lower extremity diabetic neuropathy, right lower extremity diabetic neuropathy, post operative scar to the right breast, and erectile dysfunction, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. All opinions expressed should be accompanied by supporting rationale. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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) (2013).