Citation Nr: 21007760 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-39 743A DATE: February 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Entitlement to a disability rating more than 40 percent for urinary bladder urgency is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC), based on the need for regular aid and attendance or on account of being housebound is remanded. Entitlement to aid and attendance allowance for Mable Burk is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to August 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions rendered by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was provided a hearing before the undersigned Veterans Law Judge (VLJ) in May 2020. A transcript of the hearing is associated with the claims folder. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (Court) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected urinary bladder urgency renders him unemployable. See, e.g., the May 2020 Board hearing transcript, page 18. Accordingly, in light of the holding in Rice, the issue on appeal includes entitlement to TDIU. The Board notes that a claim of service connection for an acquired psychiatric disorder to include PTSD was previously denied by the RO in an unappealed January 2011 rating decision. Subsequent to the January 2011 rating decision, outstanding service department records were associated with the Veteran’s claims folder, specifically service personnel records that document the Veteran’s service in the Vietnam Counter Offensive Phases during his tour in Vietnam. Under 38 C.F.R. § 3.156(c)(1) (2019), “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim … Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease … (ii) Additional service records forwarded by the Department of Defense or the service department of VA any time after VA’s original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.” The Board finds that the newly associated service personnel records are relevant for the purpose of reconsidering the Veteran’s acquired psychiatric disorder claim. Pertinently, these records support the Veteran’s contention that he came under enemy fire during his service in Vietnam. Therefore, these service treatment records are relevant to this issue before the Board. Accordingly, the Board will reconsider the Veteran’s acquired psychiatric disorder claim pursuant to 38 C.F.R. § 3.156(c). Service connection for an acquired psychiatric disorder, higher evaluation for urinary bladder urgency, TDIU, SMC, and aid and attendance for Mable Burk The Veteran contends that he has an acquired psychiatric disorder that is related to service, in particular from being in fear of enemy fire during his service in Vietnam. The Board notes that the Veteran’s service treatment records are absent complaints of or treatment for an acquired psychiatric disorder. However, the Veteran’s service personnel records document his military occupational specialty as a mechanic as well as his service in Vietnam and participation in the Vietnam Counter Offensive Phases. Further, the current medical evidence of record documents treatment for PTSD and depression. See a private treatment record from Q.A-S., Ph.D. dated January 2020. The Board acknowledges the January 2020 private report from Dr. Q.A-S. who opined that it is more likely than not that the Veteran’s PTSD and depression are related to service. However, Dr. Q.A-S. did not provide a rationale for this finding. There is no other medical opinion of record which addresses the etiology of the Veteran’s acquired psychiatric disorder. In light of the foregoing, the Board finds that the Veteran should be provided a VA examination on remand to determine such. With respect to the Veteran’s claim of entitlement to an increased disability rating for urinary bladder urgency, following a November 2017 statement of the case (SOC), additional pertinent evidence, specifically a December 2020 VA urinary tract examination, has been associated with the claims file without a waiver of review by agency of original jurisdiction (AOJ). The Board will remand this matter for AOJ consideration of the additional evidence received and the issuance of a supplemental statement of the case. 38 C.F.R. §§ 19.31(a), 19.37(a). The Board notes that the claim of entitlement to SMC based on the need for regular aid and attendance or on account of being housebound is inextricably intertwined with the Veteran’s claim of entitlement to an increased disability rating for urinary bladder urgency. In other words, development of this claim may impact his SMC claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Additionally, under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such is raised by the record. As noted in the Introduction above, it appears the Veteran has raised a claim for a TDIU based on his service-connected urinary bladder urgency. On remand, the AOJ should request that the Veteran submit a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his claim. Finally, with regard to the claim of entitlement to aid and attendance allowance for Mable Burk, the Board notes that there is of record a VA examination for housebound status or permanent need for regular aid and attendance Disability Benefits Questionnaire (DBQ) dated February 2016. However, the evidence of record indicates that Mable Burk’s health has worsened since then. Notably, A.H., a friend of the Veteran and Mable Burk, submitted a statement received by VA in November 2020 in which she reported that Mable Burk is no longer able to take care of household chores, personal hygiene, meal preparation, and driving. The Board notes that the February 2016 DBQ indicates that Mable Burk was able to feed herself, prepare her own meals, and could bath herself. As the record therefore indicates worsening of the health of Mable Burk, the Board finds that she should be provided a VA examination on remand to determine whether she requires the aid and attendance of another person. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he file a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his TDIU claim. 2. Schedule the Veteran for a VA examination to determine the existence and etiology of the Veteran’s acquired psychiatric disorder. The claims folder must be provided to the examiner. All testing necessary should be provided. The examiner should thereafter provide an opinion as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran has an acquired psychiatric disorder that was incurred in or aggravated during service, to include his fear of being under enemy fire during his service in Vietnam. A detailed rationale for all opinions rendered must be provided. 3. Schedule the Veteran’s spouse, Mable Burk, for an appropriate VA examination to determine whether she is in need of the regular aid and attendance of another person. The claims folder must be made available to and be reviewed by the examiner, and all necessary tests should be conducted. Specifically, the examiner must determine the effect of Mable Burk’s ability to care for her basic needs without the aid of others, to include her ability to dress, feed, and bathe herself; to attend to the wants of nature; and to protect herself from the hazards or dangers incident to her daily environment. A detailed rationale for all opinions rendered must be provided. 4. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional needed development. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.