Citation Nr: 1337734 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-38 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating for major depressive disorder and anxiety disorder with history of adjustment disorder in excess of 10 percent for the appellate period beginning on August 17, 2006, and in excess of 30 percent as of August 17, 2007. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from May 1985 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the Veteran's 10 percent rating for an adjustment disorder with anxiety and depressed mood. In a February 2008 rating decision, the RO increased the disability rating to 30 percent, effective as of August 17, 2007. In an August 2009 rating decision, the RO continued the Veteran's 30 percent rating. In August 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 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 As an initial matter, the Board notes that although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the February 2007 or February 2008 rating actions, VA was in receipt of new and material evidence within one year of those rating decisions addressing the condition and must relate any communication subsequent back to the original claim. See 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Specifically, VA provided the Veteran with an examination for Mental Disorders in October 2007, within one year of the February 2007 rating decision. Additionally, the Veteran submitted new and material lay evidence as to his psychiatric symptoms in August 2008, within one year of the February 2008 rating decision. Thus, the February 2007 and February 2008 rating actions did not become final and remain pending. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); see also Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As such, the February 2007 rating action is the decision from which the appeal proceeds. In a September 2011 letter, the Veteran requested that VA obtain his medical records from the Tampa VA Medical Center (VAMC) from September 2010 to the present, and his medical records from HQ 6th Medical AL Group (AMC) MacDill Air Force Base (AFB), Florida, from June 2008 to the present. Because the most current VA treatment records available to the Board are dated September 2010 and the most current MacDill AFB treatment records available are dated December 2007, and because VA has a duty to assist the Veteran in obtaining relevant records in the custody of a Federal department or agency, remand is required in order to obtain the relevant records that the Veteran has requested. 38 C.F.R. § 3.159(c)(1). Additionally, the Veteran should be given an opportunity to identify any other healthcare provider who has treated him for his service-connected disabilities since September 2010. Thereafter, any identified records that are not already included in the claims file should be obtained for consideration in the appeal. Furthermore, VA last provided the Veteran with a psychiatric examination in July 2010; that examination is now more than 3 years old. As the evidence indicates that the disability may have increased in severity since the last examination, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his psychiatric disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). A remand of the issue of entitlement to a TDIU due to service-connected disabilities is warranted because it is inextricably intertwined with the issue of entitlement to increased ratings for major depressive disorder and anxiety disorder with history of adjustment disorder. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his service-connected disabilities since September 2010. After securing any necessary authorization, obtain all identified treatment records, including relevant medical records from the Tampa, Florida VAMC from September 2010 to the present, and relevant medical records from HQ 6th Medical AL Group AMC MacDill AFB, Florida, from June 2008 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, that should be documented and the Veteran 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). 2. Schedule the Veteran for a VA examination to ascertain the level of impairment caused by the Veteran's service connected psychiatric disorder. The claims file should be made available for review of the Veteran's pertinent medical history. The examiner should make findings regarding the symptoms of the Veteran's psychiatric disability, and their severity. To the extent possible, the examiner should provide an opinion concerning the impact of the service-connected psychiatric disability on the Veteran's ability to work and his activities of daily living. The rationale for all opinions expressed should also be provided. 3. After associating with the file, any pertinent, outstanding records, obtain an opinion, if possible, from a vocational specialist, 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., [1] major depressive disorder and anxiety disorder with history of adjustment disorder, [2] hepatitis C, [3] hallus valgus status post right bunionectomy, [4] hallux valgus left foot, [5] Human Immunodeficiency Virus (HIV) infection, [6] sinusitis, [7] allergic rhinitis, [8] abdominal scar, [9] scars of the left calf and right leg, [10] pseudofolliculitis barbae, and [11] bilateral pes planus), either singularly or jointly, or because of the medications taken for such, 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. The claims file should be made available to and reviewed by the author of the opinion. All opinions expressed should be accompanied by a supporting rationale. An in-person examination is not required unless deemed so by the author of the opinion. 4. 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 any claim remains 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 Veteran need take no action until so informed. 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). 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). _________________________________________________ MICHAEL E. KILCOYNE 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).