Citation Nr: 1303487 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-34 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for depressive disorder. 2. Entitlement to a higher initial evaluation for hepatitis C, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from December 1962 to June 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2008 and October 2009 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Notices of disagreement were received in March and November 2009, a statement of the case was issued in July 2010, and a substantive appeal was received in August 2010. The March 2008 rating decision granted service connection for hepatitis C and assigned it a noncompensable rating effective from the October 23, 2000 date of claim. In July 2010, the RO changed the Veteran's rating for his service-connected hepatitis C from noncompensable to 10 percent disabling, effective from the October 23, 2000 date of claim. The United States Court of Appeals for Veterans Claims (Court) recently held that a request for a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which a higher rating is sought, then part and parcel of that claim is the issue of whether a TDIU is warranted as a result of that disability. Id. The Board has considered whether the Veteran or the evidence of record reasonably raises the question of whether he is unemployable due to a disability for which an increased rating is currently sought in this appeal. In the present case, the issue of entitlement to a TDIU appears to have been raised as part of the Veteran's appeal for a higher disability rating for hepatitis C (as discussed in more detail in the remand section), and that issue is addressed separately as part of this appeal in the remand section below. The appeal is REMANDED to the St. Petersburg, Florida RO. VA will notify the appellant if further action is required. REMAND In October 2009 and June 2010, the Veteran's representative noted VA medical records dating from 2001 to March 2009 which contain entries relevant to psychiatric and hepatitis disorders. She argues that some of the entries link the Veteran's diagnosed depressive disorder to his service-connected hepatitis C and bronchitis/ chronic obstructive pulmonary disease (COPD). It does not appear that all of the mentioned VA medical records are contained in the Veteran's claims folder. Specifically, the Board has been unable to locate the October 3, 2006, January 29, 2008, February 23, 2009, or March 3, 2009 which the Veteran's representative mentioned and described. Additionally, in November 2010, Douglas M. Pennington, D.O. wrote a letter concerning the Veteran's hepatitis C and indicated that he examined the Veteran. Such examination report may contain information beneficial to the Veteran's claims. Accordingly, attempts to obtain any additional relevant private and VA medical records of treatment the Veteran has received, including any from Dr. Pennington and the October 3, 2006, January 29, 2008, February 23, 2009, and March 3, 2009 VA medical records mentioned in the representative's October 2009 and June 2010 letters, should be made. Records development will be done for each of the claims at issue. VA medical records are constructively of record and must be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). Next, the Veteran appeals the RO's denial of service connection for depressive disorder. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. March 1963 service treatment records show psychiatric symptomatology after the Veteran cut himself superficially with a razor blade. He had no psychomotor retardation but appeared slightly depressed. According to a psychiatric consultant the next day, the Veteran had cut his wrist the night before as a suicidal gesture but he was not depressed or suicidal. The Veteran has argued that his psychiatric disability, diagnosed on VA examination in August 2009 as depressive disorder, has been caused or aggravated by his service-connected hepatitis C and/or his bronchitis/COPD. VA examinations were conducted in August 2009 and June 2010. They did not result in positive nexus opinions. The Veteran's representative has asserted that both examinations were inadequate. She alleged in October 2009 that the August 2009 VA examination was inadequate because the examiner failed to properly review the Veteran's medical history, did not want to review medical records which the Veteran had brought to the examination, and misquoted the Veteran. In June 2010, she indicated that the June 2010 examination was inadequate, stating that the examiner misrepresented the Veteran in his testimony and that the examiner should have considered the Veteran's psychiatric disability as secondary to all of his service-connected disabilities. The Board notes that the VA examiner in June 2010 indicated that she would have to resort to mere speculation to opine as to whether the Veteran's adjustment disorder with depressed mood was caused or aggravated by his service-connected COPD and Hepatitis C. However, the VA examiner in August 2009 was able to render an opinion as to whether the Veteran's depressive disorder which was diagnosed was related to his bronchitis/COPD, and the VA examiner in June 2010 did not explain why she could not render the opinion requested without resorting to mere speculation. Accordingly, the Board finds that another examination is necessary to satisfy VA's duty to assist the Veteran with his claim under 38 C.F.R. § 3.159, as indicated below. Regarding the hepatitis C, the rating period for this disability commences on October 23, 2000. During the course of the claim, the rating criteria for hepatitis C have changed, effective from July 2, 2001. See 66 Fed. Reg. 29486 (May 31, 2001). The provisions of 38 C.F.R. § 4.114, Diagnostic Code 7345 (2000), for infectious hepatitis, are applicable to the claim. They have not been considered, and must be. Beforehand, however, another VA examination which contains information sufficient to apply such criteria, as well as the new rating criteria, should be obtained, as indicated below, as part of VA's duty to assist the Veteran under 38 C.F.R. § 3.159 (2012). However, the Court recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which a higher rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In the present case, during the course of his hepatitis C disability rating claim on appeal, the Veteran has expressly contended that his hepatitis disability, combined with his service-connected bronchitis and COPD disability, renders him unemployable. The Veteran's contentions may be reasonably read to raise the question of whether his service-connected hepatitis C disability on appeal, together with his bronchitis and COPD, has rendered him unable to secure or sustain gainful employment. Therefore, the Board finds that the record now reasonably raises the issue of entitlement to a TDIU as an element of the hepatitis C disability rating claim on appeal. Since entitlement to a TDIU is part of that claim, the proper remedy here is for the Board to remand, rather than refer, the TDIU issue to the agency of original jurisdiction for proper development and adjudication. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain and incorporate into the claims folder all available medical records of treatment the Veteran has received which are relevant to the issues on appeal, which have not already been incorporated into the claims folder. This should include any medical records of treatment which Dr. Pennington has rendered, and the October 3, 2006, January 29, 2008, February 23, 2009, and March 3, 2009 VA medical records mentioned in the Veteran's representative's October 2009 and June 2010 letters. 2. After record development is completed, the Veteran should be scheduled for a VA psychiatric examination with regard to his claim for service connection for depressive disorder. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should carefully and thoroughly review the Veteran's medical history, review and incorporate into the claims folder any medical records which the Veteran brings to the examination, and accurately record information supplied by the Veteran. The examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's current depressive disorder is related to service, including the manifestations noted in service in March 1967? b) Is it at least as likely as not (a 50% or higher degree of probability) that such psychiatric disorder has been caused by the service-connected hepatitis C and/or bronchitis and COPD? c) Is it at least as likely as not (a 50% or higher degree of probability) that such psychiatric disorder has been aggravated by the service-connected hepatitis C and/or bronchitis and COPD? Every effort should be made to render the opinions requested. Complete rationales should be provided for each opinion rendered, and if opinions cannot be rendered for any reason, a detailed explanation for the reasons why they cannot be rendered should be provided. 3. The RO should then arrange for the Veteran to be examined for his service-connected hepatitis C disability. . It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner must also be provided a copy of 38 C.F.R. § 4.114, Diagnostic Code 7345 (2000), and also 38 C.F.R. § 4.114, Diagnostic Code 7354 (2012). The examiner should note the presence or absence of each symptom in the criteria for ratings in excess of 10 percent, in the applicable Diagnostic Code in each version of 38 C.F.R. § 4.114. The examiner should render an opinion with reasons as to whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's service-connected hepatitis C and bronchitis and COPD disabilities render him unable to obtain or retain substantially gainful employment. 4. After completion of the above and any other development deemed necessary, the RO should review the record and adjudicate the claims remaining on appeal (including that of entitlement to a TDIU). It must consider the Veteran's hepatitis C claim under both old 38 C.F.R. § 4.114, Diagnostic Code 7345 (2000) and new 38 C.F.R. § 4.114, Diagnostic Code 7354 (2012). If any benefit sought remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ ALAN S. PEEVY 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).