Citation Nr: 1803406 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 06-25 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 50 percent for a depressive disorder. 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Chisholm, Chisholm & Kilpatrick WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty from November 1978 to December 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In December 2008, the Veteran and his sister testified during a travel Board hearing before the undersigned at the RO. A transcript of the hearing is of record. Subsequently, the Board remanded these claims for additional development in decisions dated in December 2009, September 2011 and February 2013. In April 2015, the Board (in pertinent part) granted an increased 50 percent rating for depressive disorder prior to March 1, 2012. The Board also remanded the matters of entitlement to a rating in excess of 50 percent for depressive disorder from March 1, 2012 and entitlement to TDIU. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). While the case was pending before the Court, in December 2015, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion). In a December 2015 order, the Court granted the parties' motion and vacated the portion of the Board's April 2015 decision to the extent that it denied a rating in excess of 50 percent for depressive disorder prior to March 1, 2012, and remanded the case to the Board for action consistent with the Joint Motion. These issues were before the Board in July 2016 when they were remanded to schedule the Veteran for a Board hearing on the matter of entitlement to a rating in excess of 50 percent for depressive disorder, as directed by the Joint Motion. However, the Veteran and his attorney have stated that the Veteran does not desire such a hearing. See May 2016 and July 2016 statements received from the Veteran. Finally, the record shows that the Agency of Original Jurisdiction (AOJ) issued a December 2015 rating decision denying a rating in excess of 30 percent for hiatal hernia with duodenitis, esophagitis, gastritis and gastroesophageal reflux, an April 2016 rating decision denying an initial compensable rating for hypertension and a May 2016 rating decision denying service connection for sternum non-union. The Veteran filed timely notices of disagreement (NODs) with these decisions (in March 2016, May 2016 and November 2016 respectively) but he has not yet been issued statements of the case (SOCs). Ordinarily, the claims would be remanded for the issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, it appears the AOJ has acknowledged the Veteran's NODs (see the electronic Veterans Appeals Control and Locator System (VACOLS)) and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized, and remand is not necessary at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Depressive Disorder The Veteran maintains that he is entitled to a rating in excess of 50 percent for depressive disorder. The Board remanded this issue in April 2015 for a VA examination. The Veteran underwent this examination in May 2015; however, the VA examiner did not address many of the example symptoms provided by the rating criteria for determining a level of disability and which are usually addressed in a mental status evaluation. In part, the examiner did not discuss examination findings (or absence of such findings) of illogical speech, suicidal ideation, impaired impulse control, obsessional rituals, hallucinations, memory loss, and more. The Court has stated that an examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). Although further delay is regrettable, an additional VA examination is necessary to ensure a fully informed decision regarding the Veteran's claim. TDIU The Veteran maintains that he is entitled to TDIU because his service-connected disabilities (including his depressive disorder) prevent him from obtaining and maintaining gainful employment. In this case, the Veteran meets the schedular threshold for the award of a TDIU since he filed the May 2007 claim. In this regard, service connection is currently in effect for depressive disorder, evaluated as 50 percent disabling; hiatal hernia, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; hypertension, evaluated as 0 percent disabling; and erectile dysfunction, evaluated as 0 percent disabling. The Veteran's combined disability rating is 70 percent as of September 23, 2005. Therefore, since his May 2007 claim for TDIU, the Veteran has met the schedular threshold for such an evaluation. See 38 C.F.R. § 4.16 (a) (2017). Thus, the remaining question is whether the Veteran's service-connected disabilities render him unemployable. Initially, the Board finds that the Veteran's claim for TDIU is inextricably intertwined with the increased rating claim being remanded because adjudication of this claim may affect the merits and outcome of the claim for TDIU. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, no examination has specifically addressed the combined effect the Veteran's service-connected disabilities have on his functionality. Therefore, the Board finds that a medical opinion should be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request that he identify the provider(s) of all treatment or evaluation he has received for his service-connected depressive disorder, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation. Thereafter, obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. 2. Secure for the claims file all outstanding, relevant VA treatment records from the Veteran's local VA Medical Center. 3. After the above records development has been completed, the Veteran should be afforded a VA psychiatric examination to determine the current severity of his service-connected depressive disorder as well as its impact on his employability. The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. The examiner should identify and describe the nature, frequency and severity of all current psychiatric symptoms. The examiner should also opine specifically regarding the impact of the Veteran's psychiatric symptoms on his occupational and social functioning. The examiner should explain the rationale for all opinions given. If he or she is unable to provide any opinion sought, it should be so noted for the record, and the reason therefore explained. 4. Also schedule the Veteran for a VA examination by an appropriate provider to obtain a TDIU opinion. The claims folder should be made available to and reviewed by the examiner in conjunction with this request. The examiner should be informed that the Veteran is service-connected for depressive disorder, hiatal hernia, hypertension, tinnitus and erectile dysfunction. The examiner is requested to provide an opinion as to the functional impairment caused by the Veteran's service-connected disabilities, alone or in combination, in light of his level of education, special training, and previous work experience, as reflected by the evidence of record. The examiner must not consider his age or any impairment caused by nonservice-connected disabilities. The examiner must specifically consider the Veteran's VA vocational rehabilitation records. The examiner should provide a complete rationale for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's increased rating and TDIU claims should be readjudicated based on the entirety of the evidence. If the claims are not granted to the Veteran's satisfaction, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).