Citation Nr: 1340087 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 97-33 469A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for bipolar disorder. 2. Entitlement to an evaluation in excess of 10 percent for urinary stress incontinence. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1986 to October 1989. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In August 2011, the Veteran presented testimony in a travel board hearing before the undersigned. A copy of the transcript has been associated with the claims folder. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The Veteran also raised the issue of entitlement to TDIU, which was denied by way of a November 2006 rating decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the claim for TDIU is part of the claim for a higher rating and as such, a notice of disagreement is not required. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's original claims folder was lost and was subsequently rebuilt. However, review of the rebuilt volumes, as well as the Veteran's electronic records, reveals that copies of many of the relevant documents (including rating decisions, statements of the case, and supplemental statements of the case) have not been obtained and there is no indication that all efforts to obtain these records have been exhausted. Therefore, on remand, all avenues must be pursued to obtain all outstanding records pertinent to the current appeal. During the Veteran's August 2011 hearing, she indicated that she received ongoing treatment from various VA Medical Centers to include Castle Point, Montrose, and Monticello. Therefore, on remand, all outstanding VA treatment records must be obtained and associated with the Veteran's claims folder. In addition, she reported that she was in receipt of Social Security Administration disability benefits. See VA treatment record dated in May 2006. As the Veteran's claims folder is not complete, it is not clear when she was last afforded examinations for her disabilities. Therefore, she should be afforded examinations to determine the current severity of her bipolar disorder and urinary stress incontinence disabilities. Accordingly, the case is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain all outstanding records and evidence pertinent to the current appeal. All possible sources must be pursued. All efforts to obtain records and evidence (including copies of rating decisions, statements of the case and supplemental statements of the case) must be exhausted and documented in the paper claims folder/electronic file. Contact the Veteran and her representative and request that they submit copies of documents either furnished to them by VA or furnished by them to VA that are relevant to these claims. Also request that she either provide or authorize the release of records from Mount Sinai Medical Center and from the Robert Yaeger Psychiatry Center in Rockland County dated in 1998. 2. Attempt to obtain the following: a. VA examination report dated Dec. 28, 1999, at VAMC Bronx, with addendum dated Dec. 19, 2000; b. VA examination report(s) dated in June 1997 at VAMC Bronx; c. VA examination report of June 25, 2002 at VAMC Bronx; and d. all other VA medical records pertaining to the Veteran, including those from the VA facilities in Castle Point, Montrose, Monticello, Bronx, and Cleveland, Ohio. All efforts to obtain the additional evidence must be documented in the paper claims folder/electronic file. If the search for such records has negative results, documentation to that effect should be included in the claims files/electronic file. 3. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed pursuant to 38 C.F.R. § 3.159(e). 4. Schedule the Veteran for a psychiatric examination in order to determine the severity of her service-connected bipolar disorder. The examiner should describe the Veteran's symptoms and note the impact, if any, of the Veteran's disorder on her social and industrial functioning. The examiner should obtain information concerning her educational and work background and then provide information as to whether she is able or unable to obtain and/or maintain substantially gainful employment due to the service-connected psychiatric disorder either alone or in conjunction with the service-connected stress urinary incontinence. The examination report must include a complete rationale for all opinions and conclusions reached. A report of the examination should be prepared and associated with the Veteran's VA claims file/electronic record. 5. Schedule the Veteran for an examination in order to determine the severity of her service-connected urinary stress incontinence. All necessary tests and studies should be conducted, and all clinical findings should be reported in detail. The examiner should address whether the Veteran either a. uses an appliance or b. wears absorbent materials, and if so the frequency in which such must be changed. The examiner should also provide information as to whether she is able or unable to obtain and/or maintain substantially gainful employment due to the service-connected stress urinary incontinence either alone or in conjunction with the service-connected psychiatric disorder. The examination report must include a complete rationale for all opinions and conclusions reached. A report of the examination should be prepared and associated with the Veteran's VA claims file/electronic record. 6. Then, readjudicate the appeal. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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. 2013). _________________________________________________ S.S. Toth 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).