Citation Nr: 1624976 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 09-27 874 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for major depressive disorder, from October 16, 2009. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1971, and from February 1986 to September 1989. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO granted service connection for major depressive disorder and assigned an initial 30 percent rating, effective October 17, 2007, and denied entitlement to TDIU. In September 2008, the Veteran filed a notice of disagreement (NOD) regarding the assigned disability rating and the denial of TDIU. A statement of the case (SOC) was issued in July 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. In April 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket. See 38 U.S.C.A. § 7107(a)(2)(C) (West 2014); 38 C.F.R. § 20.900(c) (2015). In April 2015, the Board granted a staged disability rating for major depressive disorder of 30 percent from October 17, 2007, to August 26, 2008; and 50 percent from August 26, 2008, to October 16, 2009. The Board then remanded the issues of increased rating for major depressive disorder from October 16, 2009, and for a TDIU, for further development. In an April 2015 rating decision, the agency of original jurisdiction (AOJ) implemented the Board's decision, staging the Veteran's disability rating for major depressive disorder as 30 percent disabling from October 17, 2007, to August 26, 2008; and 50 percent disabling from August 26, 2008, to October 16, 2009. After accomplishing further action, the AOJ continued to deny the claim for a TDIU (as reflected in an October 2015 supplemental SOC (SSOC)) and returned the matters on appeal to the Board for further appellate consideration. This appeal is now being processed utilizing the paperless, electronic, Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. The claim for an increased rating in excess of 30 percent from October 16, 2009, and for a TDIU is addressed in the remand below; this matter being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. With respect to the Veteran's major depressive disorder, in April 2015, the Board awarded higher ratings for the disability: 30 percent from October 17, 2007, to August 26, 2008; and 50 percent from August 26, 2008, to October 16, 2009. The Board then remanded the matter of an increased rating in excess of 30 percent for that disability from October 16, 2009, for further development. The record reflects that the AOJ implemented the Board's award of staged ratings in an April 2015 rating decision. Subsequently, the AOJ associated with the claims file additional VA treatment records dated since April 2014 and arranged for the Veteran to undergo a VA psychiatric examination, which was conducted in September 2015. However, the AOJ did not readjudicate the claim for an increased rating in excess of 30 percent from October 16, 2009, as instructed by the Board in its April 2015 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders of the Board or the Court are not complied with, the Board itself errs in failing to insure compliance). The Board points out that the appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2014) contemplates that all evidence will first be reviewed by the AOJ so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence. See 38 C.F.R. § 19.31(b)(1) (2015). Thus, a remand is required for the RO to adjudicate the claim for an increased rating in excess of 30 percent for major depressive disorder in light of the additional, pertinent evidence received , as reflected in an SSOC. As for the claim for a TDIU, the Veteran has alleged that, as a result of his service-connected disabilities-prostate cancer, major depressive disorder, erectile dysfunction associated with prostate cancer, bursitis of the right shoulder, lumbosacral strain, hiatal hernia with reflux and duodenal ulcer, right maxillary sinusitis, submandibular gland status post-surgery, and hemorrhoids-he is unable to obtain and maintain substantially gainful employment. The Board points out that, as of May 1, 2007, the Veteran meets the percentage requirements for award of a schedular TDIU. See 38 C.F.R. § 4.16(a) (2015). An October 2009 VA examiner remarked that while the Veteran had urinary incontinence and used pads intermittently when he traveled or was in public, he stopped working in 2004 and was not diagnosed with prostate cancer until 2006; as such, his prostate cancer was not attributable to his unemployment and did not impact his physical and sedentary activities. However, VA treatment records from March 2007 to the present revealed that the Veteran got up every two hours to go to the bathroom and that he wore an adult diaper at all times, requiring five to six pads per day; and a September 2015 VA examination report noted both urinary and fecal leaks and that the Veteran rushed to bathrooms to discard both his "wet diaper" and his underwear. Further, the October 2009 VA examiner also opined that his shoulder and back disabilities did not impact his sedentary employment but might impact his physical activities due to inability to stand or walk for a prolonged period of time. Likewise, the examiner found that his erectile dysfunction, hiatal hernia with reflux and duodenal ulcer, right maxillary sinusitis, submandibular gland status post-surgery, and hemorrhoids did not impact his sedentary or physical employment. VA psychiatric treatment records also show psychomotor retardation, poor attention and focus, ruminating thought processes, superficial insight and judgment, and increasing memory problems. Further, while the September 2015 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity, he stated that the Veteran's major depressive disorder would not impair his ability to perform duties associated with physical and sedentary duties. In addition, VA treatment records reflected that the Veteran was on hydrocodone five times a day for his pain and later switched to morphine three times a day. The Veteran consistently stated that his numerous medications did not alleviate his service-connected disabilities, and that he did not want to have to increase the dosage or take more medication because he did not "want to be more of a zombie." In a June 2014 statement, the Veteran explained that he had been fired twice from volunteer positions because of his incontinence problems, that his son had to drive him everywhere because his medications made him dizzy, that he had to change his pads seven times a day, and that he had not completed a task in years because he was constantly forgetting them. The Board notes that the medical opinions of records only considered single disabilities, and did not address the combined functional effects of all the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The Board acknowledges that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16(a)). However, as medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity, a VA examination to obtain further medical findings as to the combined functional effects of all the Veteran's service-connected disabilities would be helpful in resolving the claim for a TDIU. See 38 C.F.R. § 4.10 (2015); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). Because the Veteran has both psychiatric and medical disabilities, the examination should be conducted by a psychiatrist (M.D.), if possible. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the TDIU claim, which is considered a claim for increase. See 38 C.F.R. § 3.655(b) (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails, without good cause, to report to the scheduled examination, the AOJ should associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, the notice(s) of examination-sent to him by the pertinent medical facility. Prior to arranging to obtain further medical findings in connection with the TDIU claim, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the record includes VA treatment records from the Charlotte VA Medical Center (VAMC) dated through September 2015. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the AOJ should obtain from the Charlotte VAMC all pertinent records of evaluation and/treatment of the Veteran since September 2015, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claims on appeal (to include as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from Charlotte VAMC (and any associated facilities) all outstanding, pertinent records of evaluation and/or treatment of the Veteran since September 2015. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and or the above has been completed, arrange for the Veteran to undergo VA examination by an appropriate physician-preferably, psychiatrist (M.D.). The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. Based on examination of the Veteran and review of the record, the physician should describe the combined functional effects of the Veteran's service-connected disabilities on his ability to perform the mental and physical actions required for employment. Such service-connected disabilities consist of prostate cancer, major depressive disorder, erectile dysfunction associated with prostate cancer, bursitis of the right shoulder, lumbosacral strain, hiatal hernia with reflux and duodenal ulcer, right maxillary sinusitis, submandibular gland status post-surgery, and hemorrhoids. In doing so, the physician should describe what types of employment activities would be limited because of the service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. All examination findings, along with complete, clearly stated rationale for the conclusions reached, must be provided. 5. If the Veteran fails, without good cause, to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination-preferably, the notice(s) of examination-sent to him by the pertinent medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall, 11 Vet. App. at 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims for an increased rating for major depressive disorder in excess of 30 percent from October 16, 2009, and for a TDIU. If the Veteran fails, without good cause, to report to the examination scheduled in connection with the claim for a TDIU, in adjudicating that claim, apply the provisions of 338 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate both remaining claims on appeal in light of all pertinent evidence (to include all that added to the VBMS and Virtual VA file(s) since the last adjudication) and legal authority. 8. Furnish to the Veteran and his representative an appropriate SSOC for the claim of increased rating for major depressive disorder in excess of 30 percent from October 16, 2009, as well as the claim for a TDIU (as appropriate), that reflects consideration of all evidence received since that last adjudication, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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 2014). _________________________________________________ JACQUELINE E. MONROE 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) (2015).