Citation Nr: 1528270 Decision Date: 07/01/15 Archive Date: 07/15/15 DOCKET NO. 13-16 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to an evaluation in excess of 30 percent for dysthymia, recurrent major depression and anxiety, not otherwise specified (NOS). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 3. Entitlement to a compensable initial evaluation for paranasal sinus disease. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service May 2001 to August 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and a March 2015 rating decision by the RO in St. Louis, Missouri. Jurisdiction rests with the RO in St. Louis, Missouri. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran completed an appeal as to the increased rating claim for the Veteran's service-connected psychiatric disability. In an August 2010 application for TDIU, the Veteran asserted he was unable to work due to his adjustment disorder. Entitlement to a TDIU was denied in the December 2010 rating decision, and the Veteran timely expressed disagreement with that determination. However, although a March 2013 statement of the case referenced the issue, the Veteran did not perfect an appeal as to the TDIU issue thereafter. Nevertheless, the Board concludes that the Court's holding in Rice is applicable, and the TDIU claim is properly before the Board, and the issue has been listed on the title page. Additional evidence, to include records from the Social Security Administration received by VA in January 2015, were associated with the record subsequent to the most recent, October 2014 supplemental statement of the case issued for the Veteran's increased rating claim for his service-connected psychiatric disability. The Veteran has not requested review by the agency of original jurisdiction (AOJ) of the additional evidence he submitted. See 38 U.S.C. § 7105(e). Neither the Veteran nor his representative has waived review by the agency of original jurisdiction of obtained additional evidence. See 38 C.F.R. § 1304(c) (2014). Nevertheless, as the claims herein on appeal must be remanded for additional development based on the merits, the AOJ will have an opportunity to consider the additional evidence in the first instance when the claims are re-adjudicated. The Board notes that the Veteran filed an August 2011 notice of disagreement, based on the June 2011 rating decision for an increased rating for a service-connected back disability. A March 2013 statement of the case was issued; however, as the Veteran did not perfect an appeal for this claim, it is not before the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2014). The issue of entitlement to an increased evaluation for a service connected back disability, has been raised by the record in a May 2015 application for benefits, but it 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. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Review of the most recent January 2014 VA mental disorders examination reflected that the Veteran suffered only from major depression. However, additional mental diagnoses of adjustment disorder and dysthymic disorder are reflected in a January 2015 VA treatment problem list. Moreover, dysthymic disorder and anxiety NOS have been incorporated as part of the Veteran's service-connected psychiatric disability. Where VA provides the veteran with an examination in a claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, another VA examination is warranted to accurately assess the severity of the Veteran's service-connected psychiatric disability, and the examiner must attempt to differentiate the nature or extent of the service-connected psychiatric disabilities from the nonservice-connected psychiatric diagnoses. However, the Board emphasizes that if it is not possible to distinguish the effects of the service-connected dysthymia, recurrent major depression and anxiety, NOS, from any nonservice-connected mental disorder, the reasonable doubt doctrine dictates that all psychiatric symptoms be attributed to the Veteran's service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (regulations require that when examiners are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a non service-connected disorder, VA must consider all of the symptoms in the adjudication of the claim). In light of the remand, updated VA treatment records should be obtained. The record reflects the VA treatment records, from the Lebanon VA Medical Center (VAMC), most recently dated in April 2014, have been associated with the record; however, in a July 2014 statement the Veteran reported he had moved to St. Louis, Missouri. Thus, on remand, updated VA treatment records, to include from any VA facility in the St. Louis area or from the Lebanon VAMC, to include all associated outpatient clinics, since April 2014, should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2) (2014). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Additionally, as the Veteran's TDIU claim is reliant upon the evaluation for his service-connected psychiatric disability, the Board observes that these claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, the Board must defer deciding the TDIU claim pending the outcome of the claim concerning the Veteran's psychiatric disability. Finally, the Veteran has submitted a timely March 2015 notice of disagreement with respect to the March 2015 rating decision which granted entitlement to service connection for paranasal sinus disease and assigned a noncompensable rating. However, a statement of the case has not yet been issued. In circumstances where a notice of disagreement is filed, but a statement of the case has not been issued, the Board must remand the claim to the AOJ to direct that a statement of the case be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, in the circumstances presented in this case, the Veteran should be provided with a statement of the case for entitlement to an initial compensable evaluation for mild paranasal sinus disease. Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case pursuant to the March 2015 notice of disagreement, as to the March 2015 rating decision, in which the Veteran is appealing entitlement to a compensable initial evaluation for paranasal sinus disease. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. The Veteran must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b) (2014). Only if the Veteran completes an appeal with respect to this issue by the timely filing of a substantive appeal should such be certified to the Board for appellate consideration. 2. Contact the Veteran and request that he identify, and provide any necessary authorization for VA to obtain, all records of treatment by VA and non-VA medical providers for his service-connected psychiatric disability. Attempt to obtain all identified treatment records, not already of record. Also, obtain the Veteran's updated VA psychiatric treatment records, to include from any VA facility in the St. Louis area, and from the Lebanon VAMC, to include all associated outpatient clinics, since April 2014, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Thereafter, schedule the Veteran for a VA psychiatric examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must comment on the frequency and the severity of the psychiatric symptomatology attributable to the Veteran's service-connected dysthymia, recurrent major depression and anxiety, NOS. The VA examiner should expressly state which of the Veteran's psychiatric symptomatology are due to his service-connected dysthymia, recurrent major depression and anxiety, NOS, without regard to any non service-connected psychiatric disorders which may be diagnosed. If the service-connected psychiatric disability manifestations cannot be clinically distinguished from manifestations of nonservice-connected psychiatric disability, such should be stated in the examination report, and all psychiatric findings should be considered in combination. A complete rationale for all opinions expressed must be provided. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). 5. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal, to include entitlement to a TDIU. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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). These claims 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).