Citation Nr: 1400935 Decision Date: 01/09/14 Archive Date: 01/23/14 DOCKET NO. 10-36 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for major depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from July to November 1996 and March 2003 to March 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2008, December 2008, and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In November 2010, the Veteran submitted a written request to withdraw his request for a hearing before the Board. In July 2012, he also submitted a written request to withdraw his request for a hearing before a Decision Review Officer (DRO). The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2013). The appeal is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. In the August 2008 rating decision, the RO also denied entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran submitted a September 2008 notice of disagreement. A March 2009 statement of the case (SOC) was issued by the RO. The Veteran failed to file a timely substantive appeal. An October 2013 brief by the Veteran's representative raises a claim for service connection for posttraumatic stress disorder (PTSD) on the basis of a liberalizing law change. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. REMAND The Board finds that this November 2008, February 2010, and August 2012 VA examination reports are inadequate to ascertain the Veteran's degree of occupational and social impairment solely due to the service-connected major depressive disorder. For example, on VA examination for mental disorders in August 2012, the VA examiner listed the Veteran's Axis I diagnoses as major depressive disorder, PTSD, rule out (R/O) cognitive disorder not otherwise specified (NOS), and alcohol dependence. An overall Global Assessment of Functioning (GAF) score of 50 was assigned, and the VA examiner specified that motivation, energy, and interest symptoms are likely attributable to depression. The examiner also concluded, without distinguishing between the service-connected major depressive disorder and nonservice-connected disabilities, to include PTSD, that "it appears that [the Veteran] would not be able to sustain concentration and persistence with even simple tasks due to interruption of his symptoms most days of a work week. He seems able to tolerate limited contact with the general public, coworkers, and supervisors. Overall, he appears to be able to adapt to only a relatively isolated simple working environment for a few days or less during a typical work week." When it is not possible to separate the effects of service-connected and non-service- connected disabilities, such effects should be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The examination reports do not contain attempt to ascertain whether the effect of the non-service-connected disabilities can be separated from the effect of the service-connected major depressive disorder. The Veteran has raised an additional claim of service connection for PTSD that could affect his eligibility under the schedular criteria for TDIU. The Board has referred the additional claim raised by the Veteran to the AOJ above. As that claim is inextricably intertwined with the Veteran's claim of entitlement to TDIU, the Board cannot render a decision on TDIU until the claim for service connection for PTSD is resolved. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). In addition, the Veteran does not currently meet the objective, minimum, percentage requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis. Nonetheless, there is evidence of record that suggests he is unable to secure or follow a substantially gainful occupation as a result of his service-connected major depressive disorder. The Board instructs that the TDIU claim be referred to the Director of the Compensation Service for consideration of the assignment of an extra-schedular rating once the above issues are resolved. 38 C.F.R. § 4.16(b) (2013). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all outstanding VA outpatient treatment records from August 2012 to the present. A negative response must be provided if records are not available and the Veteran and his representative should be informed of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c). 2. Furnish the Veteran's entire claims file to the VA physician who conducted the August 2012 VA examination for mental disorders and prepared the medical opinion (or a suitable substitute if that VA physician is unavailable). The VA physician must review all pertinent evidence of record and prepare an addendum opinion as to the occupational and social impairment caused solely by the service-connected major depressive disorder. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the VA physician should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 3. After completion of any additional development of the evidence that the agency of original jurisdiction may deem necessary, the RO/AMC should review the record and adjudicate claim for service connection for PTSD on the basis of a liberalizing law change. 4. After adjudication of the claim for PTSD, refer the Veteran's claim for a TDIU to the Director of Compensation and Pension Service for consideration of the assignment of an extra-schedular rating. 5. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have 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 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). ____________________________________________ J.B. FREEMAN Acting 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).