Citation Nr: 1310012 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 07-38 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for generalized anxiety disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active service from June 1975 to May 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In October 2011, the Board remanded the case to the RO for additional evidentiary development. Review of the record indicates substantial compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 A remand is necessary for further evidentiary development. The Veteran specifically contends that since his most recent VA psychiatric examination in October 2008, his generalized anxiety disorder has worsened. See Veteran's Statement in Support of Claim, October 2009. When a veteran claims that 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. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Olson v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, the Board finds that the Veteran's service-connected generalized anxiety disorder warrants another VA examination to address its current severity. Pursuant to the prior remand, the claims folder was reviewed by a VA psychiatrist in November 2011 to clarify whether symptoms related to variously diagnosed psychiatric disabilities could be differentiated, for the purpose of rating the Veteran's service-connected disability. The Board is precluded from differentiating between symptomatology attributed to two disabilities in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). The examination conducted on remand should include a review of the November 2011 report. Additionally, VA has a duty to obtain relevant medical treatment records. See 38 C.F.R. § 3.159(c) (2012). The record shows that the Veteran has received mental health treatment from Dr. Bonilla and doctors at the San Juan VA Medical Center (VAMC). Dr. Bonilla provided a copy of her annual psychiatric evaluation of the Veteran covering 2007 to 2009; however, no psychiatric evaluations are of record for 2010 to the present. On remand, records from Dr. Bonilla, including annual psychiatric evaluations, and the San Juan VAMC should be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Furthermore, the Veteran contends he may be unable to follow substantially gainful employment as a result of his service-connected generalized anxiety disorder. See, e.g., Dr. Bonilla, Psychiatric Evaluation, September 2009 (" . . . sometimes he is unable to complete a normal work day because of [his generalized anxiety] condition"); San Juan VAMC, Psychiatry Note, October 2009 ("Patient complains of immediate memory problems that affects his performance at work . . ."); San Juan VAMC, Social Work Note, October 2009 ("Pt with difficulties coping with anxiety and it is affecting his work space also."). TDIU claims are to be liberally construed. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Therefore, a claim for a TDIU has been raised. Id; Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary-to include issuing appropriate notice and obtaining a medical opinion as to the effect of the Veteran's service-connected generalized anxiety disorder on his employability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice regarding the claim for a TDIU. 2. Ask the Veteran to identify all medical care providers who have treated him for psychiatric issues during the appeal period, including any treatment he may have received since from the San Juan VAMC and Dr. Bonilla since October 2009. After securing the necessary release(s), obtain these records, including any psychiatric evaluations from Dr. Bonilla dated 2010 to the present. 3. After completion of the foregoing, schedule the Veteran for a VA psychiatric examination to ascertain the severity of his service-connected generalized anxiety disorder. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All appropriate tests and studies should be conducted and any consultations deemed necessary should be accomplished. The examination report should include a full psychiatric diagnostic assessment in accordance with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV). The examiner should identify the nature, frequency, and severity of all current manifestations of this condition. The examination report should include a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. If more than one psychiatric disability is diagnosed, the examiner should indicated which symptoms are attributable to nonservice-connected disorders, to include any diagnosed personality disorders. If the examiner is unable to differentiate between the symptomatology attributable to the different disorders, the examiner state why this is so. The examiner should specifically comment on the findings of the November 2011 VA opinion. The examiner is requested to provide an opinion as to whether the Veteran's service-connected generalized anxiety disorder renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to any impairment caused by non-service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. 4. Then, readjudicate the issues of entitlement to a disability rating in excess of 30 percent for generalized anxiety disorder and TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).