Citation Nr: 1321058 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 09-49 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a sinus disorder. 2. Entitlement to a rating in excess of 30 percent for a generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and L.L. ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1983 to June 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that declined to reopen the Veteran's previously denied claims for service connection for tendonitis of the left leg (claimed as a left knee disorder) and hypothyroidism and denied service connection for a sinus disorder and a rating in excess of 10 percent for his service-connected generalized anxiety disorder. The Veteran submitted a timely notice of disagreement as to all four issues and, in November 2009, was provided with a statement of the case as to these matters. However, he perfected a claim as to only as to his claims for service connection for a sinus disorder and a rating in excess of 10 percent for his generalized anxiety disorder. In June 2010 and November 2011, the Veteran testified during personal hearings at the RO. Transcripts of both hearings are of record. In a November 2011 rating decision, the RO granted a 30 percent rating for the Veteran's generalized anxiety disorder, effective from July 7, 2008. 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 Initially, the Board notes that a review of the Veteran's Virtual VA electronic record file reveals relevant medical records from the VA medical center (VAMC) in Jacksonville, Florida, dated to November 2012. However, the most recent supplemental statement of the case (SSOC) reflects that the RO only reviewed records from that medical facility dated to November 2011. The Veteran did not waive initial RO consideration of this new evidence. 38 C.F.R. § 20.1304(c) (2012). Regarding the sinus disorder claim, in written statements and oral testimony in support of his claim, the Veteran asserts that he has a sinus disorder due to active military service. During his June 2010 RO hearing, the Veteran stated that he had sinus problems on active duty that were treated with over-the-counter medications and current took allergy medication. See June 2010 RO hearing transcript at pages 1-2. He continued to have sinus problems since his discharge for which he used over-the-counter medication, such as Benadryl, but did not receive medical treatment. Id. at 2. However, during his November 2011 personal hearing at the RO, the Veteran testified that he first experienced sinus problems "many, many years ago" but did not recall when they started. See November 2011 RO hearing transcript at page 3. He denied seeking any treatment for a sinus disorder during military service and reiterated that, after discharge, he did not receive medical treatment for it. Id. The Veteran said that he took medication for it. Id. at 4. His major problem was sneezing in the morning and he did not know if it was related to anxiety. Id. at 3. Service treatment records do not reflect complaints or diagnosis of, or treatment for, a sinus disorder. On a Report of Medical History completed in May 1986, when he was examined for separation, the Veteran denied having ear, nose, or throat, trouble. On examination at that time, no sinus abnormality was found. Following service, VA medical records include a July 15, 2008, VA outpatient record indicating complaints of sinus pain and left ear pain intermittently for the past one week. Diagnoses included sinusitis. When seen on November 12, 2008, for follow up by his primary care physician, the Veteran did not report having sinus problems and none were diagnosed. However, an August 3, 2012 VA medical record includes acute sinusitis among his medical problems. In light of the Veteran's report of sneezing and sinus problems in service, and the post service notations of sinusitis, the Veteran should be afforded a VA examination to determine the etiology of his claimed sinus disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also seeks a rating in excess of 30 percent for his service-connected generalized anxiety disorder. During his June 2010 and November 2011 RO hearings, he testified that he experienced anxiety, social isolation, memory loss, and concentration difficulties, due to his service-connected psychiatric disorder. He also had sleep difficulty, daily fatigue, and panic attacks once or twice a week. See November 2011 RO hearing transcript at pages 8, 11, and 13. The Veteran stated that his anxiety affected his ability to work and caused him to lose customers' deals at the car dealerships at which he worked. Id. at 12. He had occupational difficulties due to his inability to concentrate and focus on tasks at hand, due to his anxiety. Id. at 5. The Veteran's witness, L.L., testified that he awoke in a panic attack in the middle of the night. Id. at 10. His symptoms had worsened in the four years since they met. Id. The Veteran underwent VA examination in December 2008. However, during his June 2010 RO hearing, he complained that the examination was inadequate. See June 2010 RO hearing transcript at page 2. In November 2010, the Veteran underwent another VA examination. However, the VA examiner concluded that the Veteran's degree of impairment in social and occupational functioning could not be stated "as it appear[ed] that...the examination yielded unreliable/inconsistent results based on a structured assessment used to detect malingering and [V]eteran's inconsistent response style on the mental status evaluation." Here, the November 2010 VA examiner considered the examination findings unreliable, based upon the Veteran's inconsistent responses. Thus, in the interest of due process and fairness, the Board is of the opinion that he should be afforded one additional opportunity to undergo VA examination to determine the current severity and all manifestations of his service-connected generalized anxiety disorder. Recent medical records regarding the Veteran's treatment at the VA medical center (VAMC) in Jacksonville, Florida, dated since November 2012, should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records regarding the Veteran's treatment at the VAMC in Jacksonville for the period from November 2012 to the present, and from any additional VA and non-VA medical provider identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. After the above development has been accomplished, schedule the Veteran for a VA examination to determine the nature and etiology of his sinus disorder. A complete history of the claimed disorder should be obtained from the Veteran. All indicated tests and studies should be accomplished and all clinical findings reported in detail. The Veteran's claims file should be made available to the examiner prior to the examination. a. If a sinus disorder is found, the examiner should indicate whether it is at least as likely as not (a 50 percent or higher degree of probability) that it had its clinical onset in service or is otherwise related to active duty, or is the result of service-connected anxiety disability. If not, is it at least as likely as not aggravated by service-connected anxiety disability? If aggravated, what permanent, measurable increase in current psychiatric pathology is attributable to the service-connected anxiety disability? b. The examiner should consider the service treatment records and post service treatment records, and Veteran's oral and written statements, discussed in this remand. c. All opinions and conclusions expressed must be supported by a complete rationale 3. Schedule the Veteran for examination by a psychiatrist who has not previously examined him to determine the current severity and all manifestations of his service-connected generalized anxiety disorder. The claims folder should be available for review by the examiner in conjunction with the examination. All indicated tests and studies should be performed (including psychological testing, if indicated) and all clinical findings reported in detail. The examiner is requested to address the following: a. the examiner should indicate, with respect to each of the psychiatric symptoms identified, whether such symptom is a symptom of the Veteran's service-connected generalized anxiety disorder. b. The examiner should also provide an opinion concerning the degree of social and industrial impairment resulting from the Veteran's service-connected generalized anxiety disorder, including whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the service-connected generalized anxiety disorder, by itself, precludes the Veteran from securing and following substantially gainful employment consistent with his education and occupational experience or whether such an etiology or relationship is unlikely (i.e., less than a 50 percent probability). Age is not to be considered a factor in rendering this opinion. c. To the extent possible, the manifestations of the service-connected generalized anxiety disorder should be distinguished from those of any other mental disorder found to be present. d. The examiner is specifically requested to include in the diagnostic formulation an Axis V diagnosis (Global Assessment of Functioning Scale) and an explanation of what the assigned score represents. e. A complete rationale should be provided for all opinions provided. 4. Thereafter, readjudicate the Veteran's claims for service connection for a sinus disorder and a rating in excess of 30 percent for a generalized anxiety disorder in light of any evidence added to the record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Then, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). 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). _________________________________________________ ERIC S. LEBOFF 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).