Citation Nr: 1753285 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-33 976A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1990 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and July 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (RO), which denied entitlement to service connection for a nervous condition and denied entitlement to a TDIU, respectively. Because the record indicates that the Veteran has had a diagnosis of major depression and paranoid schizophrenia, the Board has re-characterized the issue on appeal as service connection for an acquired psychiatric disorder, claimed as a nervous condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2016). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). The Veteran contends that his acquired psychiatric disorder, claimed as a nervous condition, is related to racial tensions he experienced while in service due to his nationality. In August 2010 correspondence, a private physician indicated that the Veteran had diagnosed major depression, and opined that it was more probable than not that his major depression is service connected due to the treatment he received while in service. The Board also notes that Social Security Administration (SSA) records from January 1995 show the Veteran had also been diagnosed with paranoid schizophrenia. In light of the "low threshold" as announced in McLendon, the Board finds that remand for a VA examination is necessary to determine if a currently diagnosed acquired psychiatric disorder is related to the reported events in service. The Board is remanding the appeal of service connection for an acquired psychiatric disorder, and finds that the claim for a TDIU is inextricably intertwined with the service-connection claim as the Veteran does not currently have a service-connected disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). This issue, therefore, must be deferred as the issue of schedular or extraschedular entitlement to TDIU is dependent upon further development of the service connection claim for an acquired psychiatric disorder. Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the case for a VA psychiatric examination to address the etiology of the Veteran's diagnosed acquired psychiatric disorder. The evidence of record should be made available to the examiner for review. All indicated diagnostic testing should be conducted. The VA examiner should identify all current acquired psychiatric diagnoses, and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorder had its onset in service; whether it is at least as likely as not that any psychosis manifested within one year of service separation; or whether it is at least as likely as not that any diagnosed psychiatric disorder is otherwise is related to service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale for all opinions and conclusions should be provided with references to findings in the claims file. In providing the report, the VA examiner should consider the Veteran's reports of racial tensions due to his nationality in service shown within August 2010 correspondence from a private physician. 2. After the requested development has been completed with regard to the claim of service connection for an acquired psychiatric disorder, the AOJ should readjudicate the claim of entitlement to TDIU, to include consideration of whether to refer the appeal for a TDIU to the Chief Benefits Director of VA's Compensation Service for consideration under 38 C.F.R. § 4.16(b) if the schedular requirements of 38 C.F.R. § 4.16(a) have not been met. 3. After all development has been completed, the AOJ should review the case again based on the additional evidence and should translate from Spanish to English any untranslated documents associated with the file. If the benefits sought are not granted, the AOJ should furnish the Veteran with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The veteran 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). 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). _________________________________________________ K. PARAKKAL 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) (2017).