Citation Nr: 0812700 Decision Date: 04/16/08 Archive Date: 05/21/08 Citation Nr: 0812700 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 00-21 685 ) DATE APR 16 2008 ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE What evaluation is warranted for anxiety disorder from September 9, 1999? REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from August 1963 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2007, the Board issued a remand decision on the claim listed on the title page. VACATUR An appellate decision may be vacated by the Board at any time upon the request of the appellant or his representative, or on the Board's own motion, when there has been a denial of due process. 38 C.F.R. § 20.904 (2007). On August 24, 2007, the Board remanded the instant issue. Therein, the Board found that the veteran was not represented by counsel. Subsequently, counsel has submitted argument in a "Motion for Reconsideration" which the Board finds persuasive. Because a remand is in the nature of a preliminary order and does not constitute a decision of the Board, there is no decision to "reconsider" and the motion is denied. Still, because counsel's argument is persuasive, the Board will vacate the August 2007 remand. ORDER The remand of August 24, 2007, is vacated. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Citation Nr: 0726634 Decision Date: 08/24/07 Archive Date: 08/29/07 DOCKET NO. 00-21 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE What evaluation is warranted from September 9, 1999, for anxiety disorder? ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran had active duty from August 1963 to June 1964. This claim comes before the Board on appeal of a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This decision granted service connection for anxiety disorder, and assigned a 10 percent disability rating, effective from September 9, 1999. The RO, in July 2006, issued a rating decision which increased the disability rating assigned to the anxiety disorder to 30 percent, also effective from September 9, 1999. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later- filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). As such, the Board has styled the issue as indicated on the title page. The veteran was represented by private counsel when he appealed VA's denial of his claim of entitlement to service connection for a psychiatric disorder. Significantly, however, the veteran limited his appointment of counsel to the issue of entitlement to service connection. The issue of the rating assigned following the grant of service connection is a different issue. Holland v. Gober, 124 F.3d 226 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Hence, the Board is precluded from continuing to recognize the veteran's former representative as his current representative. Should the veteran desire to be represented he must appoint a representative in accordance with 38 C.F.R. Part 20 (2006). For the reasons outlined below, this case is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. Consistent with the instructions below, VA will notify the veteran of any further action required on his part. REMAND The veteran was most recently afforded a VA mental disorders examination in October 2005. The examiner noted that she had an opportunity to review the veteran's claims folder in conjunction with the examination. The veteran indicated that he had last worked in 1987, at which time he was required to stop working due to his anxiety. The Board notes that the Social Security Administration (SSA) has determined that the veteran is disabled; a January 1990 SSA disability determination and transmittal cover sheet listed the primary diagnosis as severe panic attack, and listed agoraphobia and dysthymia as secondary diagnoses. He was found to have been disabled since February 1987. The October 2005 VA examiner supplied a diagnosis of anxiety disorder, not otherwise specified, in addition to a panic disorder and dysthymia. The examiner assigned a Global Assessment of Functioning (GAF) score of 53. The examiner described the severity of the veteran's psychiatric symptoms as being "moderate to considerable." A March 2006 letter from a private licensed clinical psychologist, C. Doyle, Ph.D., is of record. It noted that the veteran was examined in February and March 2006. A diagnosis of severe generalized anxiety disorder was supplied. A GAF score of 42 was provided. The psychologist opined that the veteran was unemployable and totally disabled. The examiner is not, however, shown to have had an opportunity to review the veteran's claims folder, and any treatment records prepared by Dr. Doyle have yet to be added to the claims file. Medical records from the VA Medical Center in Columbia, South Carolina, most recently dated in March 2006, are of record. These records show that the veteran was afforded psychiatric- based treatment. Applicable regulations state that it is essential that, both in the examination and evaluation, each disability be viewed in relation to its history. See 38 C.F.R. § 4.1. In this regard, medical examinations generally should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, while the private psychologist opined that the veteran was totally disabled by his service-connected anxiety disorder, as noted, he did not have an opportunity to review the complete medical record. The VA examiner in October 2005, who did not opine that the veteran was totally disabled, did have an opportunity to review the complete medical record. For this reason, as well as since the veteran has not been afforded a VA examination in almost two years, another VA psychiatric examination should be afforded the veteran, so that the current nature and severity of his anxiety disorder may be fully evaluated and reported. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should obtain all medical records from the VA Medical Center in Columbia, South Carolina dated since March 2006 relating to psychological treatment afforded the veteran. The RO should also attempt to secure all treatment records prepared by Dr. Doyle dating since February 2006. If the RO cannot locate such records, the RO must specifically document what attempts were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, the RO should schedule for a VA psychiatric examination to be conducted by a physician with appropriate expertise. All indicated studies must be performed, and all findings should be reported in detail. In accordance with the latest AMIE worksheets for psychiatric disorders the examiner is to provide a detailed review of the veteran's pertinent medical history, current complaints, and the nature and extent of his anxiety disorder. The examiner must provide an opinion concerning the degree of social and industrial impairment resulting from the anxiety disorder, to include whether the anxiety disorder alone renders the veteran unemployable. A global assessment of functioning score must be assigned with an explanation of the significance of the score assigned. The examiner must comment on the March 2006 examination findings/opinions supplied by Dr. Doyle. If the examiner disagrees with Dr. Doyle's findings she/he must explain why. The rationale for all opinions expressed must be provided. The claims file, including a copy of this remand, must be made available to the examiner for review. 3. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2006). In the event that the veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Following completion of the foregoing, the RO must review the claim folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be taken. 5. Thereafter, and following any other indicated development, the RO should prepare a new rating decision and readjudicate the appealed issue. The RO should consider whether "staged" ratings are appropriate in light of Fenderson. If the appeal is denied, the veteran should be provided a supplemental statement of the case (SSOC), in accordance with 38 U.S.C.A. § 7105 (West 2002), which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. He should then be afforded an applicable time to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2006).