Citation Nr: 1803018 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 11-17 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for a mood disorder. 2. Entitlement to a total disability rating based on individual unemployability. 3. Entitlement to an initial rating in excess of 20 percent for service connected lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on initial active duty for training from June 2002 to December 2002 and on active duty from July 2004 to November 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2010 and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2011, the Veteran testified at a travel Board hearing. A copy of that transcript has been associated with the Veteran's electronic claims folder. During the pendency of the appeal, the Veterans Law Judge who took the Veteran's testimony became no longer employed with the Board. As such the Veteran was notified in a February 2017 letter that he was entitled to another hearing before the Board. See 38 C.F.R. § 20.707. The Veteran has not indicated that he wishes to have an additional hearing. Therefore, the Board will proceed with the merits of the claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND First, in February 2014, the Board remanded the matter of entitlement to an initial rating in excess of 30 percent (later increased to 50 percent) for an adjustment disorder for a VA examination to provide an assessment of the current severity of the Veteran's psychiatric disorder. The Veteran was afforded a VA psychiatric examination in November 2014. However, in an August 2016 statement, the Veteran claimed that his psychiatric disability had worsened since the last examination. Records indicated that the Veteran failed to appear for an October 2016 VA examination; however, there is no record of the Veteran being properly notified of the scheduled examination. Therefore, the Board finds that a remand is necessary to afford the Veteran another opportunity to appear for an examination. The AOJ should also verify the Veteran's current mailing address before an exam is scheduled as it appears the Veteran's most recent correspondence lists a new address. Second, in February 2014, the Board remanded the matter of entitlement to service connection for a back disorder for further development. In a December 2015 rating decision, the RO granted entitlement to service connection for lumbosacral strain and assigned a 20 percent rating, effective October 29, 2009. In August 2016, the Veteran filed a Notice of Disagreement (NOD) with the assigned rating. However, the RO has not issued a Statement of the Case (SOC) in response to the NOD. Where a claimant files a notice of disagreement, and the RO has not issued a SOC, the issue must be remanded to the RO for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Therefore, the Board remands the matter for the issuance of an SOC. Third, the Veteran contends that his psychiatric and back symptoms prevent him from obtaining and maintaining substantially gainful employment. Accordingly, the claims for entitlement to an increased rating for a mood disorder and TDIU are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for a TDIU must be remanded pending the development and readjudication of the increased rating appeal. Fourth, the Board previously requested the Veteran's Social Security Administration (SSA) disability benefits records. The RO requested the Veteran's records on April 2014. However, to date, no SSA records have been associated with the Veteran's electronic claims folder. It is noted that a SSA online inquiry was conducted in November 2016 which revealed that the Veteran's claim was denied, but no underlying documentation was obtained. On remand, further attempts should be made to obtain any SSA benefit records. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and obtain a complete copy of any adjudication and the records, including medical records, underlying the Veteran's claim for disability benefits. All efforts to obtain the documents should be documented. 2. Issue a Statement of the Case that addresses the issue of entitlement to an initial rating in excess of 20 percent lumbosacral strain. Inform the Veteran that he must perfect a timely appeal for those issues to be considered by the Board. If, and only if, the Veteran timely perfects the appeal, return the case to the Board. 3. Then, verify the Veteran's current mailing address (see August 2016 correspondence from Veteran which lists a new address) and then schedule him for a VA examination to determine the current severity of his service-connected mood disorder. A copy of the letter notifying the Veteran of the scheduled appointment should be associated with the electronic claims folder. The electronic claims folder, including a copy of this remand, must be made available to the examiner for review prior to the examination. Any indicated evaluations, studies, and tests should be conducted. The examiner should also indicate the impairment that results from the Veteran's service connected mood disorder in terms of occupational functioning and daily activities. 4. Ensure that the information provided in the examination report satisfy the criteria above and, if not, return the report as insufficient. Then readjudicate the Veteran's claims, including the inextricably intertwined claim for entitlement to TDIU, after ensuring that any other appropriate development is complete. If the benefits sought remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).