Citation Nr: 18151252 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-38 082 DATE: November 16, 2018 REMANDED Entitlement to an initial rating higher than 30 percent for a depressive disorder not otherwise specified (NOS) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service to include the period from September 1963 to October 1969. The Veteran’s claim for TDIU was received in April 2012 whereby he claimed he cannot work in part due to his depression. The RO denied TDIU in a September 2012 rating decision. However, throughout the appeal period, the Veteran has continued to contend that he is unemployable due to his service-connected depressive disorder. See, e.g. October 2013 notice of disagreement and October 2018 brief. In a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of TDIU is currently before the Board. Issues 1-2: Entitlement to an initial rating higher than 30 percent for a depressive disorder NOS and entitlement to TDIU. The Veteran most recently was afforded a relevant VA examination for in September 2018, when the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and conversation being normal. However, the Veteran’s representative in the October 2018 brief contended that the September 2018 VA examination is inadequate and prejudicial to the Veteran as the examiner did not acknowledge that the Veteran “is in jeopardy when he is stressed.” The Veteran is competent to report symptoms and experiences observable by his senses. As the September 2018 VA examiner did not address symptomatology that actually placed the Veteran in a state of jeopardy, the Veteran should be afforded a new VA mental examination for the examiner to consider his lay statements and to provide an accurate and fully descriptive assessment of all psychiatric symptoms and the level of occupational and social impairment caused by the service-connected depressive disorder. As for the issue of entitlement to TDIU, it is intertwined with the issue being remanded herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). However, in statements, including one dated in October 2018, the Veteran also indicated that he was unemployable in part due to his service-connected angioneurotic edema (originally rated as urticaria) and gastroesophageal reflux disease (GERD) (previously rated as reflux esophagitis). Thus, the Veteran should be afforded a new VA examination in which the examiner should provide an opinion on his ability to function in an occupational environment and to describe functional impairment caused by his service-connected disabilities. During the appeal period, the Veteran has been service connected for disabilities: a depressive disorder NOS associated with angioneurotic edema (originally rated as urticaria) rated 30 percent disabling from March 17, 2011; angioneurotic edema (originally rated as urticaria) rated 20 percent disabling prior to May 23, 2011 and 30 percent thereafter; bronchiectasis with respiratory involvement associated with angioneurotic edema (originally rated as urticaria) rated as 10 percent disabling from March 17, 2011; and, gastroesophageal reflux disease (GERD) (previously rated as reflux esophagitis) secondary to medication taken for urticaria rated as 10 percent disabling from May 23, 2011. The Veteran has had a combined rating of 50 percent from March 17, 2011 and 60 percent from May 23, 2011. Thus, from May 23, 2011 he meets the schedular criteria for TDIU based on one disability resulting from a common etiology pursuant to 38 C.F.R. § 4.16(a). However, prior to May 23, 2011 his TDIU claim at this juncture is only eligible for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Referral to the Director of the Compensation Service is required first, however, as VA cannot assign an extraschedular TDIU in the first instance. Id. Thus pending resolution of the issue of entitlement to a higher initial rating for depressive disorder NOS, the issue of TDIU should be adjudicated pursuant to 38 C.F.R. § 4.16(a) for the entire appeal period if the Veteran meets the criteria for consideration of TDIU on a schedular basis prior to May 23, 2011 and if not then the TDIU claim from March 17, 2011 to May 22, 2011 should be adjudicated on an extraschedular basis to include consideration of whether referral to the Director of the Compensation Service is warranted pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected depressive disorder NOS. The examiner must provide an accurate and fully descriptive assessment of all psychiatric symptoms and the occupational and social impairment caused by the service-connected depressive disorder NOS. The examiner must also comment on the Veteran’s contention raised in the October 2018 brief by his representative that his psychiatric symptoms put him in a state of jeopardy when he is stressed. Full rationale must be provided for all stated medical opinions. If the examiner is not able to provide an opinion, he or she should explain why. 2. Also, schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities (other than his service-connected psychiatric disorder) on his ability to follow a substantially gainful occupation. Notify the examiner that the Veteran’s service-connected disabilities include angioneurotic edema, bronchiectasis with respiratory involvement, and gastroesophageal reflux disease (GERD) (previously rated as reflux esophagitis) secondary to medication taken for urticaria. The claims folder must be sent to the examiner for review. The examiner should provide an opinion regarding the Veteran’s ability to function in an occupational environment, document his reported education and work experience, and describe functional impairment caused solely by the service-connected disabilities. Full rationale must be provided for all stated medical opinions. If the examiner is not able to provide an opinion, he or she should explain why. (CONTINUED ON NEXT PAGE) 3. Afterwards, the issues remanded herein should be readjudicated by the Agency of Original Jurisdiction on the basis of additional evidence, to include the adjudication of the issue of entitlement to TDIU from March 17, 2011 to May 22, 2011 under either 38 C.F.R. § 4.16(a) or 38 C.F.R. § 4.16(b) as warranted, and from May 23, 2011 under 38 C.F.R. § 4.16(a). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel