Citation Nr: 1538914 Decision Date: 09/11/15 Archive Date: 09/24/15 DOCKET NO. 13-26 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected dysthymic disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1961 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that the Veteran requested a hearing before a member of the Board in September 2013. However, he specifically withdrew his request for a hearing in February 2015. The hearing request is withdrawn. 38 C.F.R. § 20.704(e) (2014). The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the May 2013 psychological disability report revealed that the Veteran reported that his psychiatric disorder impacts his employability. As such, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran submitted a May 2013 psychological disability report from a private psychologist. This report provided an indication that the Veteran's psychiatric disability worsened since the most recent VA examination, which was conducted in September 2011. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his psychiatric disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, this claim must be remanded. The Board further notes that the March 2014 Supplemental Statement of the Case refers to VA treatment records dated through March 2014. However, these VA treatment records are not associated with the claims file. Such records of VA treatment are constructively before VA and should be associated with the claims file upon remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As noted above, the issue of entitlement to TDIU has been raised by the record and is before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of entitlement to a higher rating for a psychiatric disorder and entitlement to a TDIU are intertwined, the TDIU must be remanded as well. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). Upon remand, the RO shall afford the Veteran a VA examination to determine whether the Veteran is unemployable due to his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, as well as appropriate VCAA notice for a claim of entitlement to TDIU. 2. Gather any outstanding pertinent records of VA treatment dated since January 2011 and associate these records with the claims file. 3. Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. Associate any available records with the claims file. Make at least two (2) attempts to obtain records from any identified source. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 4. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge of the severity of his psychiatric disorder and the impact of the Veteran's service-connected disabilities on his ability to secure or follow substantially gainful occupation. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 5. Schedule the Veteran for a VA psychiatric examination to determine the nature, extent, and severity of his psychiatric disability. The claims file must be made available to and reviewed by the examiner. All tests deemed appropriate by the examiner should be performed. The examiner should report all pertinent findings and comment on the severity of any social and occupational impairment related to his psychiatric disability. All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the examination report. 6. Then, have the Veteran undergo an appropriate VA examination, to be conducted, if possible, by a VA vocational specialist, if available, to determine the impact of his service-connected disabilities on his ability to work. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. After reviewing the record and conducting any necessary tests, the examiner should identify limitations imposed by the Veteran's service-connected disabilities, e.g., the limitations and restrictions imposed by his service-connected impairments such as sitting, standing, walking, lifting, carrying, pushing, and pulling, problems with communication, concentration, and inter-personal relationships. 7. Then readjudicate the claims. If the benefits sought remain denied, the Veteran must be furnished a Supplemental Statement of the Case. The Veteran must be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2014).