Citation Nr: 0814432 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 91-50 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 30 percent for generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The veteran served on active duty from June 1977 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) from a February 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which continued a 30 percent disability rating for the veteran's service-connected generalized anxiety disorder. The veteran testified in July 1998 before a Veterans Law Judge who retired from the Board. A transcript of that hearing is of record. In a July 2004 letter, the Board gave the veteran the option to attend a hearing before a current Veterans Law Judge. In the same month, the veteran responded that he waived his right to another hearing and wished the Board to proceed with his claim. This case was remanded by the Board for additional development in September 1992, November 1998 and August 2004. In a November 2006 decision, the Board denied a disability rating in excess of 30 percent for the veteran's generalized anxiety disorder. The veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2007 Order, which granted a November 2007 Joint Motion to Remand (Joint Remand), the Court vacated the Board's decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As an initial matter, 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. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Court, in its November 2007 Order, granted the Joint Remand vacating the Board's November 2006 decision due to deficiencies in the examination provided to the veteran for evaluating the current state of his service-connected generalized anxiety disorder. In August 2004, the Board remanded this case in order to afford the veteran an examination to ascertain the current status of his service-connected generalized anxiety disorder. The remand directed that the examiner should take into account the findings of unemployability and differing diagnoses of paranoid schizophrenia and post-traumatic stress disorder (PTSD) that were not in the file at the time of the previous examination in May 2002. As such, the Board directed the RO to afford the veteran a current examination, to include appropriate clinical testing and review of the claims file, in order to determine the nature and extent of the veteran's service-connected psychiatric disability, in totality. Instruction paragraph 4 of the Board's August 2004 Remand directed the AOJ to provide an examination in order for the examiner to opine whether any diagnosed psychiatric pathology (to include schizophrenia and PTSD) was part and parcel of the service-connected anxiety disorder and, if the veteran is found to be unemployable, whether his unemployability is due to the service-connected anxiety reaction. The veteran was afforded a psychiatric examination in March 2006. However, the examiner did not address the August 2004 Remand instructions regarding whether any other diagnosed psychiatric disorder was intertwined with his service- connected anxiety disorder and whether the veteran was unemployable due to his service-connected anxiety disorder. Therefore, this case must be remanded for compliance with the Board's August 2004 remand. Stegall v. West, 11 Vet. App. 268 (1998). On remand, the veteran should be afforded another psychiatric examination in order to determine the nature and severity of the veteran's service-connected generalized anxiety disorder, whether he has any other psychiatric disorders that are part and parcel of his service-connected generalized anxiety disorder, and whether he is unemployable due to his service- connected generalized anxiety disorder. The Board notes that the Court has held that when a claimant has both service- connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In addition, the Court, in Hart v. Mansfield, 21 Vet. App. 505 (2007), held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In reaching this conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. Accordingly, consideration should be given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found, for the relevant appeals period. Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the entire file and ensure that all notice obligations have been satisfied in accordance with 38 U.S.C.A. § 5103(a) and 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007). In particular, VA must send the appellant a corrective notice pursuant to the decision reached in Vazquez-Flores, supra, that explains (1) that he can submit 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, (2) generally, the criteria necessary for entitlement to a higher disability rating, (3) that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life, and (4) types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization. The claims file must include documentation that the AOJ has complied with VA's duties to notify and assist a claimant. 2. After completion of 1 above, the AOJ should schedule the veteran for a psychiatric examination, by an appropriate specialist, to determine the nature and extent of his service- connected generalized anxiety disorder. The claims file, the old and new criteria for mental disorders that have been in effect during the pendency of the appeal, this remand and the Joint Remand must be made available to the examiner for review of the pertinent evidence in connection with the examination, and the report should so indicate. The examiner should perform any tests or studies deemed necessary for accurate assessments. The examiner is to assess the nature and severity of the veteran's service- connected generalized anxiety disorder in accordance with the latest AMIE worksheet for rating psychiatric disorders. The examiner should be provided with copies of the old and new rating criteria for psychiatric disorders to assist in preparing a report addressing the nature and extent of the veteran's service- connected psychiatric disability. In addition, the examiner should offer an opinion as to (1) the current diagnosis of the appellant's psychiatric condition, (2) whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric pathology (to include schizophrenia and PTSD) is part and parcel of the service-connected anxiety disorder, (3) if the veteran is unemployable, and (4) whether it is at least as likely as not (50 percent or more probability) that the veteran's unemployability is due to the service- connected generalized anxiety reaction. If the examiner cannot separate any psychiatric disability manifested from the service-connected anxiety reaction, the examiner should so state. The examiner should clearly outline the rationale and discuss the medical principles involved for any opinions expressed. If the requested medical opinions cannot be given, the examiner should state the reason why. 3. After completion of the above, the AOJ should readjudicate the appellant's claim, taking into consideration the holdings in Mittleider v. West, 11 Vet. App. 181 (1998) and in Hart v. Mansfield, 21 Vet. App. 505 (2007), and the old and new criteria for mental disorders as the regulation dealing with mental disorders changed during the pendency of the appeal, see 61 Fed. Reg. 52695-52702 (October 8, 1996), effective November 7, 1996, (codified at 38 C.F.R. §§ 4.16, 4.125-4.132). If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. Thereafter, the case should be returned to the Board, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the appellant's claim. No action by the appellant is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examinations may result in the denial of his claims. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and his representative have 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. 2007). _________________________________________________ A. BRYANT 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).