Citation Nr: 1316430 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 11-03 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for service-connected anxiety disorder prior to April 19, 2011, and greater than 50 percent from April 19, 2011 to the present day. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1965 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that effectuated the Board's June 2009 grant of service connection for an anxiety disorder and evaluated the disability as 30 percent disabling, effective June 11, 2003. The Veteran disagreed with the RO's assigned initial rating, and perfected an appeal as to this issue. During the pendency of the appeal, the RO increased the Veteran's disability rating from 30 to 50 percent, effective April 19, 2011. See the RO's May 2011 rating decision. The Veteran has made clear his desire to proceed with his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In December 2012, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned. A transcript of that hearing has been associated with the Veteran's electronic VA claims folder. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (the Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. As discussed in further detail below, the issue of entitlement to TDIU has been raised by the Veteran in his December 2012 testimony before the Board. In light of the Court's holding in Rice, the Board has included the raised TDIU claim as an issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board regrets having to remand the Veteran's appeal at this time. However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. The Veteran has testified that VA is the sole source of his medical treatment for his service-connected anxiety disorder, and that he still sees the doctor and is prescribed medication. See the December 2012 hearing transcript, at 3-5. Notably, in a January 2011 Statement of the Case, the RO specifically indicated that it had reviewed VA treatment reports dating through January 2011. The Board has reviewed the Veteran's physical and electronic claims folder, and the only VA treatment reports of record date through December 2008. It is therefore clear that outstanding VA treatment reports exist which have not been included in the record for the Board's review. VA treatment reports are constructively of record, and must be obtained and associated with the claims file for appellate review. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, the Veteran was last afforded a VA mental disorders examination in April 2011. At the December 2012 hearing, the Veteran and his representative specifically testified that the Veteran's anxiety disability had worsened in severity since the April 2011 examination, noting a chronic state of heightened awareness, increased anxiety, irritability and concentration problems. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where 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, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Based on the Veteran's competent testimony, the Board believes that a medical examination assessing the current severity of the Veteran's service-connected anxiety disorder and its effect on the Veteran's employability, if any, is necessary to adequately decide this claim. Finally, the Veteran testified that he could not work because of his service-connected anxiety disorder. The Board finds that, based on this statement, the issue of TDIU has been reasonably raised by the record. As noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, on remand the RO should incorporate consideration of whether the Veteran is entitled to a TDIU award in its readjudication of the Veteran's claim for a higher initial disability rating for service-connected anxiety disorder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a notice letter informing him of the criteria necessary to establish TDIU, and requesting that he identify any additional medical treatment he has received for his service-connected anxiety disorder. 2. The RO/AMC should take appropriate steps to secure copies of any such treatment reports identified by the Veteran that are relevant to his psychiatric disability care which are not in the record on appeal, to include any existing VA treatment records dated from December 2008 to the present from the Bay Pines VA Healthcare System and the Tampa VAMC. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). In light of the recent change at 38 U.S.C.A. § 5103A(b)(2)(B), following receipt of authorization, two attempts should be made to obtain relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 3. The RO/AMC should then schedule the Veteran for a VA examination to determine the current severity of his service-connected anxiety disorder. The complete claims folder should be provided to the examiner, and the examiner should be asked to specifically state that the complete folder has been reviewed. All appropriate testing should be carried out, to include an interview and a comprehensive mental status examination. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations of the Veteran's service-connected disability (anxiety disorder) and discuss the impact of such symptoms on the Veteran's social and occupational functioning. A Global Assessment of Functioning (GAF) score should be assigned, and the examiner should explain the basis for such score. The Board observes that the Veteran is not service-connected for any personality disorder. The examiner is asked to differentiate between the symptoms and manifestations of the service-connected anxiety disorder and other nonservice-connected personality disorders or other acquired psychiatric disorders, if any. The examiner should also provide an opinion as to whether the Veteran's service-connected anxiety disorder renders him unable to secure or follow a substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review the record and adjudicate the Veteran's claims. If the benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should 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). _________________________________________________ VINCENT C. CHIAPPETTA 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).