Citation Nr: 1321267 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 08-00 290A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased evaluation for a service-connected anxiety disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active military duty from December 1970 to 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA) located in Decatur, Georgia. In February 2010, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In July 2010, the Board remanded this matter for further development. After such development, the Board denied the issue on appeal in June 2012. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the Office of General Counsel for the Department of Veterans Affairs and the Veteran's representative (hereinafter "the parties) filed a Joint Motion for Remand, which was granted by the Court in February 2013. The case has been returned to the Board for further development in accordance with the Joint Motion. In the June 2012 decision, the Board also remanded the issues of entitlement to service connection for a heart disorder as well as entitlement to a total disability rating based on individual unemployability for further development. In December 2012, the RO sent a notice to the Veteran requestion additional medical information in accordance with the Board remand. As it appears that these matters are still being developed by the RO, they are not currently before the Board and will be addressed in a later Board decision if necessary. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Subsequent to the February 2013 Court Order, the Veteran's representative submitted additional evidence in May 2013, which included lay statements from the Veteran's wife and daughter concerning the severity of his anxiety disorder. In a May 2013 cover letter, the Veteran, through his representative, requested that this case be returned to the RO for consideration of this additional evidence. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, the appeal must be returned to the RO. Moreover, the Veteran was afforded a VA examination in November 2010 to evaluate the severity of his anxiety disorder. However, the lay statements submitted by the mother and daughter appear to show an increase in severity since this examination, specifically with respect to the Veteran's ability to function. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the additional lay evidence, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's anxiety disorder. The Board also observes that the Joint Motion indicated that the parties determined that the Board erred when it failed to provide adequate reasons and bases regarding whether the Veteran was entitled to stage ratings under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart V. Mansfield 21 Vet. App. 205 (2007). Specifically, the Joint Motion referred to a decrease in the Veteran's Global Assessment of Functioning (GAF) score from 70 to 50 noted in an October 2005 treatment record and July 2006 VA examination report. Consequently, the Joint Motion determined that a remand was required to address whether a staged rating was warranted during the period of from July 2005 to July 2006. Accordingly, on remand, the VA examination should also address whether the decrease in GAF scores during this period represented an actual increase in severity of the Veteran's anxiety disorder. Lastly, it appears that the Veteran also receives continuous treatment at the VA. However, the most recent treatment records associated with the claims file are dated from February 2010. A review of the Virtual VA claims processing system also does not reveal any additional records. As VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records from February 2010 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from February 2010 to the present. 2. Thereafter, schedule the Veteran for an appropriate VA psychiatric examination to determine the current nature and severity of his service-connected anxiety disorder. The claims file must be made available to the examiner for review in connection with the examination. Examination findings should be reported to allow for evaluation the General Rating Formula for Mental disorder. See 38 C.F.R. § 4.130. The examiner should clearly offer an opinion on the Veteran's level of occupational and social impairment. In addition, the examiner should assign a GAF score reflecting the Veteran's symptoms and address the disparities between GAF scores assigned during the course of the appeal, specifically during the period of July 2005 to July 2006 and whether this represented an actual increase in severity of the Veteran's anxiety disorder. 3. Thereafter, the additional evidence should be reviewed, to specifically include all evidence received since the June 2012 Board decision, and the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ MARJORIE A. AUER 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).