Citation Nr: 1317370 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-19 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent prior to November 2, 2007 and in excess of 30 percent thereafter for adjustment disorder with anxiety. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to November 1973; from April 1974 to September 1987; and from September 1990 to June 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, in pertinent part, granted service connection for an adjustment disorder with anxiety; assigned a 10 percent evaluation for that disability; effectuated the award as of March 31, 2006; and denied a TDIU. In a July 2012 decision, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. In a January 2013 rating decision, the RO increased the 10 percent disability rating for adjustment disorder with anxiety to 30 percent disabling, effective for the period from November 2, 2007. The Veteran was advised of the January 2013 rating decision, but did not express agreement with the decision or withdraw the appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the assigned 10 percent and 30 percent disability ratings are not the maximum benefits available for the service-connected adjustment disorder with anxiety, this appeal continues for the respective initial rating periods. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to service connection for tinnitus has been raised by the Veteran in March and May 2012 statements, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required for the issue of an initial disability rating in excess of 10 percent prior to November 2, 2007 and in excess of 30 percent thereafter for adjustment disorder with anxiety. After a review of the record, the Board finds that additional pertinent VA outpatient treatment records from December 2005 to March 2013 were associated with the Veteran's file on the "Virtual VA" system after issuance of the January 2013 Supplemental Statement of the Case (SSOC). Specifically, the Veteran was assigned lower Global Assessment of Functioning (GAF) Scale scores of 55 in December 2012, 65 in June 2012 and March 2013, and 67 in July 2012. The Board notes that the most recent August 2012 VA Disability Benefits Questionnaire (DBQ) examination for mental disorders report documents the Veteran's GAF score was 70. There is no indication that the identified VA outpatient treatment records pertinent to this claim have been initially considered by the RO. As a result, the Board finds this claim must be remanded to the agency of original jurisdiction (AOJ) for initial review of the additional evidence of record, specifically the VA outpatient treatment records from December 2005 to March 2013, not cited as reviewed by the RO in the January 2013 SSOC. See 38 C.F.R. § 20.1304 (2012). Because the Veteran's claim for an initial disability rating in excess of 10 percent prior to November 2, 2007 and in excess of 30 percent thereafter for adjustment disorder with anxiety is being remanded, and because adjudication of this claim may impact adjudication of the Veteran's TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Veteran's TDIU claim must also be remanded. Accordingly, the case is REMANDED for the following action: Review all of the most recently associated evidence of record, then readjudicate the issues of an initial disability rating in excess of 10 percent prior to November 2, 2007 and in excess of 30 percent thereafter for adjustment disorder with anxiety and a TDIU. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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). ____________________________________________ JOHN J. CROWLEY 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).