Citation Nr: 1754071 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 13-10 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected bipolar disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to June 1972 and from December 1974 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In September 2016, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is associated with the claims file. A TDIU claim is part of an increased rating claim and is properly before the Board when the record raises such claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim has been raised by the Veteran's September 2016 Board hearing testimony and is now on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The AOJ should obtain a new VA examination for the Veteran's service-connected bipolar disorder as the evidence indicates that his symptoms may have worsened since the last VA examination conducted in October 2014. At the September 2016 Board hearing, the Veteran's representative stated that he had experienced more difficulty due to his bipolar disorder since the prior examination. See Hearing Testimony page 4. Additionally, the Veteran testified that his disability seemed worse and that he experienced more "down periods" than he had previously. See Hearing Testimony pages 5 and 15. Furthermore, in a May 2016 letter, the Veteran's private treatment provider reported that the Veteran had recently been experiencing hypomania. Therefore, given the time period since the prior examination and possibility of worsening of his disability, the Veteran should be afforded a new VA examination to obtain pertinent information to assess the current nature and severity of his service-connected bipolar disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, at the September 2016 hearing, the Veteran's representative indicated that the Veteran had undergone an independent psychological evaluation. The representative stated that they had not received the results at that time. The Board notes that the independent examination report has not been associated with the record. Thus, on remand, efforts must be made to obtain this report. As indicated in the Introduction, the issue of entitlement to TDIU has been raised by the record in connection with the Veteran's claim for a higher rating for his service-connected bipolar disorder. At the September 2016 hearing, he stated that he worked 10 to 15 hours weekly, but had been missing work due to a lack of motivation and memory loss. He was also experiencing increased irritability stemming from interactions with customers. He indicated that he believed it would be best for him to stop working due to his psychiatric symptomatology. As such, on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU and be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file on remand as well. The Board notes that treatment records dated through February 22, 2013 have been associated with the record. Additionally, the Veteran should be given the opportunity to submit any additional evidence pertinent to his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. The RO should request that he complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain all relevant VA treatment records dated from February 22, 2013 to the present. 3. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his appeal, including any private treatment records following the proper VA procedures. Specifically, the RO must obtain the independent psychological evaluation report referred to at the September 2016 hearing. 4. After obtaining any outstanding records, schedule an appropriate VA examination by a VA psychiatrist or psychologist to determine the current nature and severity of his service-connected bipolar disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected bipolar disorder. The examiner should also discuss the degree of occupational impairment attributable to the Veteran's service-connected bipolar disorder. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected bipolar disorder, what types of employment would not be limited (if any), and whether any limitation on employment would likely be permanent. All opinions expressed must be accompanied by supporting rationale. 5. After undertaking any other development deemed appropriate and ensuring that the requested actions are completed, if any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case (SSOC) with consideration of all evidence associated with the claims file since the claim was last adjudicated. The Veteran and his representative should be afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MARJORIE A. AUER 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 Court. 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).