Citation Nr: 0814295 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 07-07 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to a rating in excess of 50 percent for service connected generalized anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1948 to December 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Manchester, New Hampshire Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, continued a 30 percent evaluation for the service connected generalized anxiety. Upon review by a Decision Review Officer in February 2007, the rating was increased to 50 percent with an effective date of July 18, 2006. The veteran has continued his appeal. The Board remanded the claim in December 2007 upon the veteran's request for a videoconference hearing. In April 2008, the veteran presented personal testimony during a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During his April 2008 hearing, the veteran's accredited representative appeared to indicate that the veteran wishes to re-open his claim for service connection for a left knee disorder. The Board refers this matter to the RO for appropriate action. 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the evidence not of record that was necessary to substantiate his claim and of which parties were expected to provide such evidence by correspondence dated in August 2006. The United States Court of Appeals for Veterans Claims, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. It was further noted that regarding the disability-rating element, in order to comply with section 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided, that is necessary to establish a disability rating for each of the disabilities contemplated by the claim and allowed under law and regulation. Notice regarding these elements was provided to the veteran in the August 2006 correspondence. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Although correspondence from the RO to the veteran dated in August 2006 discussed the "duty to notify" provisions of VCAA and the evidence needed to substantiate his claim for an increased rating, the letter did not discuss the need to submit evidence that showed the effect of the disability on the claimant's employment and daily life. Additionally, the letter did not discuss the specific criteria listed in Diagnostic Code 9400 required for an increased rating for generalized anxiety. The Board notes that the veteran's last VA compensation and pension examination for his anxiety was in September 2006. The veteran's spouse died in February 2007. The veteran asserted in his April 2008 videoconference hearing that manifestations of his anxiety had increased in severity since his spouse died. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2007), an examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See also 38 C.F.R. § 3.159 (2007). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the AMC/RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002), 38 C.F.R. § 3.159 (2007), and Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) are fully complied with and satisfied. Specifically, the AMC/RO should send the veteran a letter which details the need for him to show a worsening or increase in severity of his disability and the effect that worsening has on the claimant's employment and daily life. The letter should include the rating criteria set out by 38 C.F.R. § 4.130 Diagnostic Code 9400 (2007). 2. The AMC/RO should obtain the names and addresses of all medical care providers who treated the veteran for anxiety since October 2006. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. After all available records and responses from each contacted entity have been associated with the claims file, the RO should arrange for the veteran to undergo a psychiatric examination for his anxiety at an appropriate VA medical facility. The entire claims file must be made available to the psychiatrist or psychologist performing the examination. The examination report should include discussion of the veteran's documented medical history and assertions, as well as an occupational and social history. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should set forth all evaluation/examination findings, along with the rationale for any conclusions reached. Following a review of the record and interview and evaluation of the veteran, the examiner is to indicate which of the following paragraphs (a), (b), (c), or (d), best describes the degree of impairment caused by the anxiety: (a) Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or (b) Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; or (c) Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; or (d) 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 normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The examiner should render a multi- axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the veteran's anxiety and depression, and an explanation of what the score means. Additionally, the examiner should express an opinion regarding the extent to which the veteran's anxiety alone affects his employability. 4. The veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, any issue remaining on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ RENÉE M. PELLETIER 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) (2007).