Citation Nr: 18140782 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 17-34 993 DATE: REMANDED Entitlement to an initial rating in excess of 30 percent for anxiety disorder NOS and depressive disorder NOS is remanded. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By a rating action in December 2010, the RO granted service connection for anxiety disorder NOS and depressive disorder NOS, and assigned a 30 percent rating, effective September 3, 2010. Subsequently, in a rating action dated in September 2014, the RO denied the claim for a TDIU. The Veteran perfected a timely appeal to those decisions. By a Decision Review Officer’s (DRO) decision, dated in November 2013, the RO granted service connection for ischemic heart disease (IHD), and assigned a 10 percent rating, effective July 15, 2011. The Veteran filed a notice of disagreement with the rating assigned for the IHD. To date, no statement of the case has been issued. 1. Entitlement to an initial rating in excess of 30 percent for anxiety disorder NOS and depressive disorder NOS is remanded. The Veteran essentially contends that his psychiatric disorder is more disabling than the 30 percent rating currently assigned. It is argued that the symptoms reported in the treatment records, including depression, anxiety, suicidal ideation, social withdrawal, neglect of personal hygiene, and irritability, clearly demonstrate a psychiatric disorder which more nearly approximates a higher evaluation. In this regard, the Veteran’s attorney argues that the worsening of symptoms has been demonstrated since the November 2013 VA examination. In a medical statement, dated in May 2014, Dr. Alan J. Harris also refers to increased symptoms being reflected in a November 2013 VA examination. However, upon review of the Veteran’s electronic claims folder (VBMS and Virtual VA), the Veteran’s November 14, 2013 VA psychiatric examination report is not of record. The November 2013 statement of the case (SOC) specifically referred to findings of a November 2013 examination report with respect to the severity of the anxiety disorder; however, it is not a part of the record. 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). The AOJ must obtain the examination report to allow for a fully informed appellate review of the Veteran’s claim on appeal. 2. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease is remanded. Under the provisions of 38 U.S.C. § 7105 (a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: there must be a decision by the agency of original jurisdiction (AOJ), the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. As noted above, by a DRO decision, dated in November 2013, the RO granted service connection for IHD, and assigned a 10 percent rating, effective July 15, 2011. A notice of disagreement (NOD) with the rating assigned for the IHD was received in January 2014. The Board notes that a statement of the case (SOC) addressing the matter of an initial rating in excess of 10 percent for IHD has not yet been issued. Therefore, a remand for this action is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. § 19.9 (c) (2017). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities is remanded. Regarding TDIU, the Veteran's service-connected disabilities do not meet the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16 (a). However, even when the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a TDIU may be established on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321 (b), 4.16(b). As noted above, additional development is needed in order to ascertain whether the Veteran is entitled to an increased initial rating for his anxiety and depressive disorders. That additional development could have bearing on whether the Veteran meets the criteria in 38 C.F.R. § 4.16 (a) and, thus, affect the outcome of the TDIU claim. Accordingly, the Board considers the Veteran's TDIU claim to be inextricably intertwined with the increased rating issue currently on appeal. As such, consideration of the Veteran's TDIU claim must be deferred pending adjudication of his claim for an increased rating for anxiety disorder. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a Veteran's claim for another issue). The matters are REMANDED for the following actions: 1. Obtain the Veteran's November 2013 VA examination report (referenced in the November 21, 2013 SOC) and associate it with the Veteran's electronic claims folder. All efforts to identify and obtain the missing examination report must be documented and associated with the Veteran's electronic claims folder. Obtain and associate with the claims file any existing relevant VA treatment records not already associated with the claims file. 2. Furnish the Veteran and his attorney with an SOC, including all pertinent laws and regulations, for the issue of entitlement to an initial rating in excess of 10 percent for IHD. The Veteran must be notified of his rights and responsibilities in perfecting a timely appeal as to this claim. Return this issue to the Board only if the appeal is perfected by the filing of a substantive appeal. 3. Thereafter, and after undertaking any additional development deemed necessary (including an examination, if indicated), readjudicate the issues on appeal, including entitlement to a TDIU due to service-connected disabilities to include consideration of whether the requirements for referral to the Director of Compensation Service have been invoked under 38 C.F.R. § 4.16 (b). If any benefit sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs