Citation Nr: 1237156 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-00 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for anxiety disorder, NOS with depressive disorder, NOS. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1983 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified in September 2012 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. The Board finds that the record raises a claim for a total rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on TDIU when the appellant claims he is unable to work due to a service connected disability). However, the TDIU issue has not been properly developed for appellate review. Accordingly, it is remanded 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 the appellant if further action is required. REMAND The Veteran last had a VA examination in February 2009. He testified at the September 2012 hearing that the condition of his depression and anxiety had since worsened. The U.S. Court of Appeals for Veterans Claims has held that "[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination." Olson v. Principi, 3 Vet. App. 480, 482 (1992). Thus, the Board finds that the Veteran should be provided with a new VA examination for his anxiety disorder, NOS with depressive disorder, NOS. VA treatment records to September 2012 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from September 2012 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board observes that the Veteran testified at the September 2012 hearing that he had been deemed unable to work at vocational rehabilitation treatment. The Board finds that the record raises a claim for a total rating based on individual unemployability (TDIU). See Rice, 22 Vet. App. 447. However, the TDIU issue has not been properly developed for appellate review. On remand, the Veteran should be notified of the information and evidence needed to substantiate a TDIU claim and should be provided with an examination to determine whether his anxiety disorder, NOS with depressive disorder, NOS prevents him from working. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Issue appropriate VCAA notice on the Veteran's TDIU claim. A copy of the notice letter should be included in the claims file. 2. Request a copy of the Veteran's VA treatment records from the Louis Stokes Cleveland VA Medical Center and all associated outpatient clinics from September 2012 to the present. 3. After all appropriate development above has been accomplished, schedule the Veteran for a VA psychiatric examination. The claims folder should be reviewed, and that review should be indicated in the examination report. The examiner must evaluate and discuss the extent of the Veteran's service-connected anxiety disorder, NOS with depressive disorder, NOS. The examiner should address all of the Veteran's symptoms in the context of the VA Rating Schedule as well as provide a Global Assessment of Functioning (GAF) score. The examiner is also requested to provide an opinion as to whether the Veteran's service-connected disability, anxiety disorder, NOS with depressive disorder, NOS, render him unable to secure or follow a substantially gainful occupation. When offering this opinion the examiner should not consider the effects of any non service-connected disability, or the effects of age. A complete rationale for all opinions expressed must be provided, citing to specific documents in the claims file and/or current clinical findings, including the VA vocational rehabilitation treatment records, as appropriate. All findings and conclusions should be supported by a rationale. 4. Readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and give him an appropriate period of time in which to respond. Thereafter, return the appeal to the Board. 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. 2011). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2011).