Citation Nr: 1304975 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-29 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected anxiety disorder. 2. Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability (TDIU). ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. The matter concerning entitlement to an initial increased rating for the service-connected anxiety disorder comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C., which granted service connection for anxiety disorder, assigning a 10 percent disability evaluation effective February 6, 2006. The TDIU claim was first addressed as part of a June 2010 Statement of the Case (SOC). In June 2011, the Board denied the Veteran's initial increased rating claim for anxiety disorder. The Veteran appealed the Board's June 2011 decision to the United States Court of Appeals for Veterans Claims (the Court), which in July 2012, issued a Memorandum Decision vacating the Board's decision. The Veteran's claims folder has been returned to the Board for additional appellate review and for action in compliance with the July 2012 Memorandum Decision. In addition, the June 2011 Board decision also remanded the claim for TDIU in order to issue the Veteran a rating decision for that matter. A May 2012 rating decision denied entitlement to a TDIU. The Veteran expressly disagreed with the RO's denial of a TDIU in a statement dated in July 2012. A statement of the case (SOC) pertaining to that issue has yet to be issued by the RO. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a notice of disagreement (NOD) is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. 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 After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issues on appeal must be remanded for further evidentiary development. The Veteran is seeking an initial evaluation in excess of 10 percent for anxiety disorder. The Board finds that there is conflicting medical evidence as to the severity of the Veteran's service-connected anxiety disorder and that further VA examination is warranted. An August 2006 private psychiatric examination conducted by H. J., M.D., shows that the Veteran provided a history of symptoms which included anger, irritability, nightmares, flashbacks, depressed mood, suicidal and homicidal attitude, hypervigilance, jumpiness and trouble sleeping. The Veteran was not taking any medications for treatment of a psychiatric disorder. A Global Assessment of Functioning (GAF) score of 39 was provided by Dr. H. J. Conversely, a May 2009 VA examiner found the Veteran to have mild and persistent anxiety disorder. The examiner stated that the Veteran's psychiatric symptoms resulted in slight impairment of employment and social function. The VA examiner provided a GAF score of 65 which is significantly higher than the GAF score of 39 provided by Dr. H. J. Subsequently, in a February 2010 letter, Dr. H. J. reported that while the Veteran dropped out of treatment in April 2007, he was once again receiving psychiatric treatment. Dr. H. J. noted that the Veteran continued to provide symptoms such as anger, irritability, nightmares, flashbacks, depressed mood, some suicidal ideation, hypervigilance, jumpiness, and difficulty sleeping. Dr. H. J. reported that the Veteran would start taking citalopram and trazodone. A GAF score was not provided. Given the conflicting medical evidence found in the record as to the severity of the Veteran's service-connected anxiety disorder, the Board finds that a remand is required to obtain another examination of the claimant to reconcile this evidence. Also, as the Veteran was last afforded a VA psychiatric examination in May 2009, a more contemporaneous examination would be helpful in resolving this claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). The Veteran should inform VA if he is still receiving treatment from Dr. H. J. The last treatment record in the claims file is from March 2010. If the Veteran has received treatment since then, he should provide VA with permission for it to obtain the treatment records from April 2010 to the present. Also, as noted in the introduction, in a May 2012 rating decision, the RO denied entitlement to a TIDU. In July 2012, the Veteran expressly disagreed with the RO's denial of this claim. In Manlincon, supra, the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the issue of entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. The AMC should request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected anxiety disorder. The AMC should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate these with the claims file, to specifically include a request for all treatment records from Dr. H. J. for the period beginning from April 2010. 2. The AMC should make arrangements with an appropriate VA medical facility for the Veteran to be afforded a psychiatric examination. The claims folder is to be provided to the physician for review in conjunction with the examination. All indicated tests and studies deemed appropriate by the examiner, including psychiatric testing, must be accomplished and all clinical findings should be reported in detail. The examiner should assign a GAF score for the Veteran's anxiety disorder, and review the medical evidence in the claims file, including the report of VA examination conducted in May 2009 and the private treatment records and reports submitted by Dr. H. J. The examiner should provide a medical opinion as to whether the severity of the anxiety disorder fluctuated during the pendency of the appeal. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder, and must indicate that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. Following the above, the AMC should review all the relevant evidence and re-adjudicate the claim. If the benefit is not granted, an appropriate SSOC should be issued. The Veteran should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. 5. The RO should issue an SOC pertaining to the Veteran's claim of entitlement to a TDIU. The issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. 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. 2012). _________________________________________________ L. M. Barnard 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) (2012).