Citation Nr: 1335889 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-25 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from August 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) regional office (RO), which denied, in pertinent part, an increased evaluation for an anxiety disorder with gastrointestinal features. The Veteran timely appealed that claim to the Board, along with service connection claims for retinopathy and glaucoma. In October 2012, the Board denied service connection for retinopathy and glaucoma, and determined that an increased evaluation for anxiety disorder with gastrointestinal features was not appropriate. The Veteran appealed that Board's 2012 decision to the United States Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the Veteran and the Secretary for the Department of Veterans Affairs (Secretary) agreed to seek a remand of the case insofar as the Board had failed to adjudicate a raised claim of TDIU implicit in the claim for a higher rating for the anxiety disorder with gastrointestinal features. The March 2013 Court order, which granted the parties' motion, specifically noted that the case was remanded only to the extent that the Board had failed to adjudicate a TDIU claim. The Court dismissed the appeal as to remaining issues. Because the Court's order appears not to have disturbed the rating for anxiety, but instead remanded because of a failure to address TDIU, the question now before the Board seems to require consideration of a TDIU claim relative to the combined effect of all the Veteran's service-connected disabilities. The Board has reviewed the record and finds that it cannot adjudicate the TDIU claim at this time as such a claim has not been properly developed, including providing the appropriate notices, as well as obtaining a VA Form 21-8940 from the Veteran. Additionally, the Board finds that a VA examination should be provided to the Veteran, which assesses his occupational impairment and employability in light of his various service-connected disabilities. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Board acknowledges that an August 2013 private psychologist's findings include an assessment that the Veteran's psychiatric disorder renders him unemployable. Nevertheless, upon review of the Veteran's service-connected disabilities-including a neck scar that is noncompensable, hypertension that is 10 percent disabling, carotid artery disease that is noncompensable, and his psychiatric disability that is 30 percent disabling-the Board finds that the Veteran's service-connected disabilities do not currently meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) (2013). In light of August 2013 psychologist's finding of unemployability due to psychiatric disorder, the Board finds that the agency of original jurisdiction (AOJ) should refer this case to the Director of Compensation and Pension Services under 38 C.F.R. § 4.16(b) before returning this case to the Board for further appellate review. Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AOJ should properly develop a TDIU claim, to include issuance of proper Veterans Claims Assistance Act of 2000 (VCAA) notice that is compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as well as attempting to obtain from the Veteran an application for TDIU--VA Form 21-8940. 2. Obtain any relevant VA treatment records from the Boston and Providence VA Medical Centers, or any other VA medical facility that may have treated the Veteran, since May 2011 and associate those documents with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for any service-connected disability, which is not already of record, to include any treatment with Dr. J.P.P., the psychologist who provided the August 2013 report. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. Thereafter, schedule the Veteran for a VA examination with a psychiatrist. The examiner should review the claims file in conjunction with the examination. A detailed history of the Veteran's educational experience and occupational training and experience should be obtained. Psychological testing should be conducted as necessary to ascertain the true level of impairment caused by anxiety with gastrointestinal features. Following the claims file review and examination that accounts for all 4 service-connected disabilities, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected neck scar, anxiety disorder with gastrointestinal features, carotid artery disease, and hypertension, either individually or in the aggregate, preclude substantially gainful employment. The examiner must specifically address the Veteran's work qualifications, training, and employment history, as well as his level of education. Any opinion rendered should be without consideration of the Veteran's age or any non-service-connected disorder(s). An explanation for each opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. If the AOJ does not grant disability rating(s) to a level that satisfies the threshold ratings set forth in 38 C.F.R. § 4.16(a), the AOJ should refer the Veteran's claim of entitlement to TDIU to the Director of Compensation and Pension Services for extraschedular consideration under 38 C.F.R. § 4.16(b). 6. If the benefit sought on appeal thereafter remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).