Citation Nr: 0504097 Decision Date: 02/15/05 Archive Date: 02/22/05 DOCKET NO. 02-11 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for panic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from May 1999 to August 2000. This appeal to the Board of Appeals previously arose from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO, in pertinent part, granted entitlement to service connection for panic disorder with assignment of a 30 percent evaluation, effective August 7, 2001, date of claim. On January 30, 2004, the Board granted entitlement to an increased evaluation of 50 percent for panic disorder. It appears that the RO has not yet had the opportunity to implement the Board's January 30, 2004 decision, and issue a rating decision establishing assignment of an increased evaluation of 50 for panic disorder. In any event, in a November 2004 Joint Motion, the Secretary and the veteran moved the United States Court of Appeals of Veterans' Claims (CAVC) to vacate in part and remand the case to the Board for further appellate review consistent with items specified in the Joint Motion. In December 2004 the CAVC ordered that the motion for remand is granted and that part of the January 30, 2004 decision wherein the Board denied entitlement to an evaluation in excess of 50 percent for panic disorder be remanded to the Board for compliance with instructions in the joint motion. The case has been returned to the Board for further appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration (VBA) AMC. The law requires that all claims that are remanded by the Board or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). The CAVC has held that section 5103(a), as amended by the Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b), as recently amended, require VA to inform a claimant of which evidence VA will provide and which evidence claimant is to provide, and remanding where VA failed to do so. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 202); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The RO issued a VCAA-related notice letter to the veteran in connection with his current appeal in August 2001, referable to his initial claim of entitlement to service connection for panic disorder. The November 2004 Joint Motion recommended, among other things, that the Board consider additional examination of the veteran in an effort to fully evaluate the nature and extent of severity of his panic disorder and its adverse effects on his ability to work. The Board agrees that a contemporaneous, comprehensive VA psychiatric examination would materially assist in the adjudication of his appeal. The Board observes that additional due process requirements may be applicable as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Accordingly, the case is remanded to the VBA AMC for further action as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The VBA AMC should issue a rating decision implementing the Board's January 30, 2004 determination granting entitlement to an increased evaluation of 50 percent for panic disorder. 3. The VBA AMC must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), Veterans Benefits Act of 2003, Pub. L. 108-183 ,§ 701, 117 Stat. 2651, ___ (Dec. 16, 2003) (codified at 38 U.S.C.A. § 5103), and any other applicable legal precedent. In this regard, the VBA AMC should issue a VCAA letter to the veteran advising him to provide all pertinent in his possession in support of his claim. Such notice should specifically apprise the appellant of the evidence and information necessary to substantiate his claim for initial increased evaluation of panic disorder and inform him whether he or VA bears the burden of producing or obtaining that evidence or information, and of the appropriate time limitation within which to submit any evidence or information. 38 U.S.C.A. § 5103(a) and (b) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 4. The VBA AMC should contact the veteran and request that he identify all healthcare providers, VA and non-VA, inpatient and outpatient, who have treated him for his panic disorder since February 2002. He should be requested to complete and return the appropriate release forms so that VA can obtain any identified evidence. All identified private treatment records should be requested directly from the healthcare providers. Regardless of the veteran's response, the VBA AMC should obtain all outstanding VA treatment reports. All information which is not duplicative of evidence already received should be associated with the claims file. 5. If the VBA AMC is unable to obtain any of the relevant records sought, it shall notify the veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (codified at 38 U.S.C. § 5103A(b)(2)). 6. The VBA AMC should arrange for the veteran to be examined by a specialist in psychiatry for purpose of ascertaining the current nature and extent of severity of his service-connected panic disorder. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination(s). The examiner must annotate the examination report(s) that the claims file was in fact made available for review in conjunction with the examination(s). Any further indicated special studies must be conducted. The examiner should identify all of the veteran's associated symptomatology in order to determine the impairment caused by panic disorder. If there are other psychiatric disorders found, in addition to panic disorder, the examiner should specify which symptoms are associated with each disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be so indicated. If a psychiatric disorder(s) other than panic disorder is or are found on examination, the examiner should offer an opinion as to whether any such disorder is causally or etiologically related to panic disorder, and if not so related, whether the veteran's panic disorder has any effect on the severity of any other psychiatric disorder. All necessary studies, including psychological testing, should be accomplished. Following evaluation, the examiner should provide a numerical score on the Global Assessment of Functioning (GAF) Scale provided in the Diagnostic and Statistical Manual for Mental Disorders, in relation to the veteran's impairment from panic disorder. The examiner must include a definition of the numerical GAF score assigned, as it relates to the veteran's occupational and social impairment. If the historical diagnosis of panic disorder is changed following evaluation, the examiner should state whether the new diagnosis represents a progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. The examiner must express an opinion as to whether panic disorder has rendered the veteran unemployable. Any opinions expressed by the examiner must be accompanied by a complete rationale. 7. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the VBA AMC should review the requested examination reports and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 8. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should readjudicate the claim of entitlement to an initial evaluation in excess of 50 percent for panic disorder. In so doing, the VBA AMC should document its consideration of the applicability of 38 C.F.R. § 3.321(b)(1) (2004). If the benefit requested on appeal is not granted to the veteran's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claim currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for an initial increased evaluation, and may result in its denial. 38 C.F.R. § 3.655 (2004); Connolly v. Derwinski, 1 Vet. App. 566 (1991). _________________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the CAVC. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2004).