Citation Nr: 18141715 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-41 361 DATE: October 11, 2018 REMANDED Entitlement to an initial evaluation in excess of 70 percent for service-connected mood disorder, not otherwise specified (NOS), is remanded. Entitlement to an evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, with diabetic retinopathy is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from August 1969 to May 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (the Board) from November 2011 and May 2012 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This matter, among other issues, was previously before the Board in May 2018, when it was remanded for further procedural and evidentiary development. The Board’s May 2018 remand directive and the subsequent actions by the Agency of Original Jurisdiction (AOJ) will be further discussed below. The Veteran’s appeal has been returned to the Board. Clarification of an issue on appeal In the May 2012 rating decision and accompanying notice letter, the AOJ informed the Veteran that the issue of entitlement to TDIU had been raised by the record, but that adjudication was being deferred so that the issue could be developed. An appropriate notice letter was sent to the Veteran in April 2013; however, no other efforts have been undertaken to develop or adjudicate the issue since that time. Despite this, the Board finds that the issue is properly before the Board as part and parcel of his issues seeking increased evaluations, and the title page has been amended with the inclusion of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 1. Entitlement to an initial evaluation in excess of 70 percent for service-connected mood disorder, NOS, is remanded. 2. Entitlement to an evaluation in excess of 20 percent for service-connected diabetes mellitus, type II, with diabetic retinopathy is remanded. 3. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In May 2018, the Board remanded the issues seeking increased evaluations so that the Veteran could be provided contemporaneous VA examinations to discern the current severity and frequency of the manifestations associated with these disabilities. While appropriate examinations were scheduled, the Veteran failed to report to such in July 2018; however, it is unclear whether the Veteran knew of these examinations, as there is nothing in the file to indicate that he was notified of the time and place to report for such. Further, on September 18, 2018, after issuance of a Supplemental Statement of the Case (SSOC) that readjudicated the Veteran’s issues seeking increased evaluations on September 1, 2018, the Veteran’s private attorney submitted to the AOJ a February 2015 vocational assessment from a private vocational evaluator which was accompanied by a statement that specifically requested that the evidence be considered by the AOJ before returning the Veteran’s appeal to the Board. On September 28, 2018, a Decision Review Officer (DRO) at the AOJ noted that “The appellant, and his/her representative, has failed to submit evidence requested in [the Board] remand,” and re-certified the appeal back to the Board without consideration of the February 2015 private vocational assessment in an SSOC or other similar document, contrary to the September 2018 request of the Veteran’s private attorney. Initially, a remand is necessary because the AOJ did not consider the February 2015 private vocational assessment in the first instance, contrary to the September 2018 request from the Veteran’s private attorney. Further, the Board concludes that these issues must be remanded for contemporaneous VA examinations to determine the current frequency and severity of the Veteran’s service-connected psychiatric disability and diabetes mellitus, type II, with diabetic retinopathy, as there is no indication that the Veteran was notified of the July 2018 VA examinations and the only other evidence addressing these critical matters are the 2010 VA examinations and February 2015 private vocational assessment – which are nearly 9 and 4 years old, respectively. So that the VA examiner is fully apprised of the Veteran’s complete medical picture, updated private and VA treatment records must be obtained and associated with the record. Finally, as the Veteran’s TDIU claim is dependent on his combined evaluation and, in part, on the functional impairment associated with his service-connected mood disorder, NOS, diabetes mellitus, type II, and diabetic retinopathy, the Board must defer action on this intertwined issue at this time. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment from the VAMC in Sacramento, California, and all associated facilities dated after August 31, 2018. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to the issues remanded herein. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examinations to evaluate his service-connected mood disorder, NOS, diabetes mellitus, type II, and diabetic retinopathy. The complete electronic record must be made available to, and reviewed by, the VA examiners prior to conducting the examinations. All necessary studies and tests should be conducted. The examiners must describe the frequency and severity of the manifestations of the Veteran’s service-connected mood disorder, NOS, diabetes mellitus, type II, and diabetic retinopathy. In addition, the examiners are requested to comment on the effect of the Veteran’s service-connected disabilities, alone and in concert, on his employability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. After undertaking any additional development deemed appropriate, and giving the Veteran and his representative a full opportunity to supplement the record, readjudicate the Veteran's appeal seeking an increased evaluation for his service-connected mood disorder, NOS, diabetes mellitus, type II, and diabetic retinopathy, in light of all of the evidence of record, to include the February 2015 private vocational assessment. If any benefit sought on appeal is not granted to the fullest extent, the Veteran and his private attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 5. Thereafter, The AOJ must complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran’s complete educational and occupational history. Thereafter, the AOJ must readjudicate the Veteran's appeal seeking TDIU in light of all of the evidence of record, to include the February 2015 private vocational assessment. If the benefit sought on appeal remains denied, the Veteran and his private attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel