Citation Nr: 1602891 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 09-15 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to a total disability rating based upon individual unemployability due to service connected disability (TDIU) prior to April 18, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and A.W. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from July 1980 to July 1983 and from December 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded this matter in July 2014 to obtain a VA examination and obtain private treatment records from Carl Albert Community Health Center. The Veteran was afforded a VA examination in December 2014. Available treatment records from Carl Albert Community Health Center were associated with the record in November 2014. A May 2015 rating decision granted entitlement to a TDIU from April 18, 2013. As the grant did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). An October 2015 rating decision denied entitlement to special monthly compensation based on aid and attendance/housebound. The Veteran filed a timely VA Form 9. At present, that issue has not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2015). However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notifications have not been sent in regard to the VA Form 9 filed in December 2015, the Board declines to take any further action on that issue at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). The issues of entitlement to service connection for a psychiatric disorder and entitlement to a TDIU prior to April 18, 2013 are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Psychiatric Disorder In July 2014, the Board remanded the claim to obtain a VA examination. The Board requested a VA examination. The remand requested that the examiner provide an opinion regarding whether a current psychiatric disorder is related to service, including the Veteran's complaints of anxiety during a hospitalization in 1982. The examiner was requested to provide an opinion as to whether a current psychiatric disorder is proximately due to, or aggravated by, a service-connected disability. The Veteran had a VA examination in December 2014. The examiner diagnosed schizoaffective disorder, bipolar type. The examiner opined that the Veteran's disability is less likely than not incurred in or caused by service. The examiner noted that service records did not show a complaint or treatment of mental illness during the Veteran's military career. The examiner noted that records showed that the Veteran had been inconsistent about the onset of mental illness and had at different times attributed it to his father's death, the breakup of his first marriage, vision issues and hearing loss and military trauma. The examiner indicated that, during the examination, the Veteran attributed it to the breakup of his first marriage during service. With regard to secondary service connection, the examiner opined that depression is not due to the Veteran's service-connected conditions. The examiner opined that, when asked when he had depression, the Veteran only referred to his divorce and not to his service-connected conditions. The examiner indicated that he attributed his depression to his vision in the past, but this was inconsistent. The VA examiner did not address the service treatment records which noted complaints of anxiety during a 1982 hospitalization. The Board finds that a remand is warranted to obtain an addendum opinion from the VA examiner. In order to ensure compliance with the prior remand directives, the examiner should address the service treatment records. Stegall v. West, 11 Vet. App. 268 (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The addendum opinion should address the Veteran's report of depression due to the breakup of his marriage during service. The examiner should state whether the Veteran's report of depressive symptoms due to marital problems is indicative of the onset of a psychiatric disorder in service. TDIU In a May 2015 rating decision, the RO found that the Veteran is unemployable due to service-connected diplopia due to strabismus surgery. The RO granted a TDIU from April 18, 2013, the date that the schedular requirements of § 4.16(a) were met. A Social Security decision dated in April 2006 found that the Veteran has been disabled since January 1, 1998, due to various disabilities, including schizophrenia and major depression. The issue of entitlement to a TDIU is inextricably intertwined with the claim for service connection for a psychiatric disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are inextricably intertwined). It is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled and that veterans who fail to meet the schedular criteria for a total disability rating shall be considered for such a rating on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board is precluded from awarding a TDIU on an extraschedular basis in the first instance, but must ensure that the claim is referred to the Director of VA's Compensation and Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board notes that if the Veteran does not meet the schedular requirements for consideration of a TDIU on a schedular basis after the intertwined issue has been developed, then the RO should refer the case to the Director of VA's Compensation and Pension Service for consideration of entitlement to a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the December 2014 VA examiner for an addendum opinion. If that individual is no longer available, another VA examiner can provide the opinions. A. The examiner should provide an addendum opinion with regard to whether a current psychiatric disorder is at least as likely as not related to service, including the Veteran's reports of anxiety during his hospitalization in 1982. The examiner should address the following: (i) The examiner should discuss the complaints of anxiety noted in the service treatment records in May 1982. (ii) The examiner should state whether the Veteran's report of depressive symptoms due to the breakup of his marriage supports a finding that his current psychiatric disorder had its onset in service or is otherwise related to events in service. The examiner should provide a detailed rationale for the opinions stated. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion. 2. After completion of the requested actions, readjudicate the issues of entitlement to service connection for a psychiatric disorder and entitlement to a TDIU prior to April 18, 2013, to include on an extraschedular basis. If the schedular requirements for a TDIU are not met, refer the claim to the Director of Compensation for consideration of an extraschedular TDIU rating prior to readjudication of that claim. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time to respond, before returning the case to the Board, if otherwise in order. 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). (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).