Citation Nr: 0814675 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-07 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a compensable evaluation for an anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Law Clerk INTRODUCTION The veteran had active service from March 1970 to March 1972 and from December 1990 to May 1991. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In August 2003, the veteran testified during a hearing at the RO before the undersigned, a transcript of which is associated with the record. The Board remanded the case to the RO in November 2004. In a January 2006 decision, the Board denied the veteran's claim for a compensable evaluation for his service-connected anxiety disorder. The veteran appealed the Board's January 2006 decision to the U.S. Court of Appeals for Veterans Claims (hereinafter referred to as "the Court"). In that litigation, a Joint Motion for Remand was filed by the appellant and the VA General Counsel, averring that remand was required on the basis that the RO failed to fully comply with the instructions of the Board's November 2004 remand. See Stegall v. West, 11 Vet. App. 268 (1998). In an Order of September 2007, the Court vacated the Board's decision and remanded the matter, pursuant to the joint motion. A copy of the Court's Order in this matter has been placed in the claims file. Finally, in its January 2006 decision, the Board noted that evidence in the file, including an April 2005 private medical report from Dr. T.F., related a current diagnosis of post- traumatic stress disorder (PTSD) to the veteran's Vietnam service. The Board remanded the matter of a claim for service connection for PTSD to the RO for appropriate development and consideration. However, no action has yet been taken on the matter and it is again referred to the RO. The appeal is accordingly once again being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC for action in compliance with the Court's order. VA will notify the veteran if further action is required on his part. REMAND In November 2004, the Board remanded the veteran's case to obtain either an addendum from the examiner who conducted the veteran's April 2002 VA examination or for an additional VA examination by a different examiner to ascertain if the veteran's service-connected anxiety disorder was related to his diagnosed depression. In January 2005, the RO obtained an addendum to the original VA examination of April 2002 from that examiner, as per the Board's remand instructions. However, the RO found the addendum inconclusive as to the relationship between the veteran's service-connected anxiety disorder and his diagnosis of depression, and obtained an independent medical opinion in dated May 2005. Unfortunately the Board finds that another remand is necessary in this case. A review of the evidence in this case reveals that the RO has not complied with the directive from the Board's November 2004 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). The Board notes that some partial development was completed in the form of the May 2005 VA independent medical opinion. However, obtaining the independent medical opinion without an examination of the veteran went outside of the parameters of the Board remand. Therefore, neither of the opinions obtained fully complied with the Board's instructions. See Stegall v. West, supra. Thus, the Board finds that a remand of this case is necessary in order to fully comply with the mandate of the Court. See Stegall v. West, supra. Here, due process requires that the veteran be afforded the another VA medical examination to determine the current severity and all manifestations of his service-connected anxiety disorder. The Board also finds that the veteran has not been provided complete notice with respect to the Veterans Claims Assistance Act of 2000 (VCAA). See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007); and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, the case is REMANDED for the following action: 1. The appellant should be provided the notice required under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159(b) (2007), to include the notice specified by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as to the determination of effective dates and disability ratings applicable to his claim, and Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), to include notice that he should submit all pertinent evidence in his possession. The veteran should specifically be advised that, if the diagnostic code under which he is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by his demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on his 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. See Vazquez, supra. 2. The RO/AMC should obtain all VA medical records regarding the veteran's treatment for the period from May 2005 to the present, and any additional private medical records identified by him. If any records are unavailable, a note to that effect should be placed in the claims file and the veteran and his representative so advised in writing. 3. Then, the veteran should be scheduled for a VA psychiatric examination, performed by a qualified specialized physician, to determine the current severity and all manifestations of the veteran's service connected anxiety disorder, and if any currently diagnosed depression is related to his previously diagnosed anxiety disorder. All indicated tests and studies should be performed and all clinical findings reported in detail. a) The examiner should indicate, with respect to each of the psychiatric symptoms identified, whether such symptom is a symptom of the veteran's service- connected anxiety disorder. b) The examiner should also provide an opinion concerning the degree of social and industrial impairment resulting from the veteran's service-connected anxiety disorder, including whether the disorder interferes with his ability to work, or renders him unable to obtain and maintain substantially gainful employment. c) To the extent possible, the manifestations of the service- connected anxiety disorder should be distinguished from those of any other mental disorder found to be present. d) The examiner is specifically requested to include in the diagnostic formulation an Axis V diagnosis (Global Assessment of Functioning Scale) consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (4th. ed. revised, 1994) and an explanation of what the assigned score represents. e) The examiner is particularly requested to render an opinion as to the etiology of any diagnosed depression found to be present. f) If any diagnosed major depression is not related to the prior diagnosis of anxiety disorder, the physician should so state. g) In rendering an opinion, the examiner is particularly requested to address the independent medical opinion rendered by the VA psychiatrist in May 2005 (to the effect that it was more likely than not that the veteran's major depression was a separate condition unrelated to his service- connected anxiety disorder). h) A complete rationale should be provided for all opinions rendered. The veteran's claims file must be available to for the examiner's review, and the examination report should indicate if the examiner reviewed the veteran's medical records 4. Thereafter, the RO should readjudicate the veteran's claim for a compensable evaluation for his service- connected anxiety disorder. If the benefits sought on appeal remain denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal since the August 2005 SSOC. An appropriate period of time should be allowed for response. 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 need take no action unless otherwise notified. The veteran 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. 2007). _________________________________________________ D.J. DRUCKER Acting 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).