Citation Nr: 1321522 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 10-25 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 50 percent for anxiety disorder not otherwise specified (NOS). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1944 to May 1946. This matter initially came before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied entitlement to a rating in excess of 30 percent for anxiety disorder NOS. The RO in Chicago, Illinois currently has jurisdiction over the Veteran's claim. In his March 2008 notice of disagreement, the Veteran requested a hearing at the RO. In December 2009, an informal hearing conference with a Decision Review Officer (DRO) was conducted in lieu of a formal hearing. A report of that conference has been associated with the Veteran's claims folder. In a March 2010 decision, the DRO granted an increased 50 percent rating for anxiety disorder NOS, effective May 22, 2007. The Veteran testified before the undersigned at a November 2012 videoconference hearing. A transcript of that hearing has been associated with his claims folder. In November 2012, the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In February 2013, the Board remanded this matter for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). In this case, the evidence reflects that the Veteran's service-connected psychiatric disability may have worsened since his last VA examination in March 2010. For example, VA mental health outpatient treatment notes dated in February and October 2011, a January 2012 VA emergency department treatment note, and an October 2012 VA mental health outpatient treatment note include reports of a "significant increase in nightmares and level of anxiety," increased depression, and "worsening [posttraumatic stress disorder]." During the November 2012 hearing, the Veteran's representative requested a new VA examination to assess the severity of the service-connected psychiatric disability. Also, the Veteran reported in a May 2013 statement that his disability was worsening. Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected psychiatric disability is triggered. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). An April 2013 VA mental health outpatient treatment note reveals that the Veteran was scheduled for follow up VA psychiatric treatment in one month. There are no more recent VA treatment records in the claims file or among the Veteran's paperless records in the Virtual VA system. In his May 2013 statement, he requested that recent VA treatment records be obtained. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the claims file all records of the Veteran's treatment for a psychiatric disability contained in the Madison Vista electronic records system and dated from April 2013 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA psychiatric examination to assess the current severity of his service-connected psychiatric disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examiner shall report the nature and severity of all signs and symptoms of the Veteran's service-connected psychiatric disability, describe the impact of the disability on his occupational and social functioning, and provide a Global Assessment of Functioning score. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his psychiatric disability. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ shall review the examination report to ensure that it contains the information requested in this remand and is otherwise complete. 4. If the benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. A. MARKEY 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).