Citation Nr: 21031026 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-13 422 DATE: May 20, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for tardive dyskinesia is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to June 11, 2008, is remanded. REASONS FOR REMAND The Veteran had active service from September 1968 to March 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by VA regional offices. The Veteran initially requested a videoconference hearing with a Veterans Law Judge (VLJ) which was scheduled in May 2016. The Veteran did not appear for that hearing, and the Veteran's request is deemed withdrawn. See 38 C.F.R. § 20.704(d). These matters have previously been before the Board on several occasions. However, most relevant to this discussion, these matters were before the Board and denied in March 2020. Those denials were appealed to the United States Court of Appeals for Veterans Claims (Veterans Court) and remanded pursuant to a January 2021 Joint Motion for Partial Remand (Joint Motion). Tardive Dyskinesia As an initial matter, the Joint Motion pointed out the findings in April 2008 VA clinical records, which discuss the Veteran's slurring of his words primarily when he gets excited, and indicated a potential connection to Risperidol, which he had been on for years. Another April 2008 record shows the Veteran's tardive dyskinsea caused "hand, tongue, and mouth movements" and his service-connected posttraumatic stress disorder (PTSD) and schizophrenia were treated with Risperadone. These records were added to the VA records system in April 2008, which was within 60 days of the March 2008 Statement of the Case (SOC) related to the initial tardive dyskinesia rating. The Veteran argues, citing the United States Court of Appeals for the Federal Circuit's (Federal Circuit) recent opinion in Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020), that these treatment records, particularly treatment records from April 2008 were both material to his claim for an increased rating and constructively received by VA adjudicators only days after the March 2008 SOC was generated. The Board finds these to be valid arguments. As these records give rise to the question of whether the symptoms shown are to be considered in the rating for the Veteran's tardive dyskinsea, the Board finds the August 2006 rating decision to not be final. 38 C.F.R. § 3.156(b). This increased rating claim has been pending, therefore, since March 2005. Moreover, the Board finds remand is necessary not only for the RO to readjudicate the claim, but also for an opinion to be sought as to whether the symptoms shown in April 2008 were associated with the Veteran's service-connected disability. In particular, the Board finds that additional clarification of the slurred speech symptom is required. The Veteran believes that this symptom reported to a VA treatment provider within a couple of weeks of his March 2008 SOC is related to his tardive dyskinesia; however, other evidence of record, including documents submitted with his 2006 notice of disagreement (NOD), appears to link this symptom not to the use of his medication but to a failure to comply with his medication. Consequently, the Board finds that an adequate adjudication of this claim requires an opinion as to whether this slurred speech reported in April 2008 is a manifestation of the Veteran's tardive dyskinesia or a manifestation of his psychiatric disability when it is untreated. Remand of the matter of whether an initial rating in excess of 10 percent is warranted for tardive dyskinesia is necessary. TDIU Prior to June 11, 2008 The Veteran seeks entitlement to TDIU as part of his appeal for an increased rating for his tardive dyskinesia. The TDIU claim, therefore, has also been pending since March 2005. Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the discussion of the issue of entitlement to increased rating for tardive dyskinesia will affect the outcome of this claim and it is therefore inextricably intertwined. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tardive dyskinesia, as well as the severity and symptoms of the disability throughout this claim period. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner's attention is directed to the records from April 2008 and the documents submitted with his NOD in 2006 discussing his slurred speech. The examiner should indicate whether the slurred speech discussed in these records and others are manifestations of the Veteran's tardive dyskinesia and should make any findings relevant to the Veteran's speech currently as it is observable during the examination. The examination report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue entitlement to TDIU prior to June 11, 2008. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.