Citation Nr: 1321651 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 06-03 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for generalized anxiety disorder (GAD), currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating, based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney-at-law ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran had active service from December 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO), which denied amongst other issues, an increased rating in excess of 50 percent for GAD. In a December 2008 decision, the Board found the criteria for a rating in excess of 50 percent for GAD had not been met. The Veteran appealed that decision to the United States Court of Appeals for Veterans' Claims (Court). In a December 2010 Order, a Memorandum Decision vacated the December 2008 Board decision because it did not address the issue of entitlement to a TDIU. The Court remanded the case to the Board for compliance with the action set forth in the Memorandum decision. In May 2011, the Board remanded the instant claims for further development to include examinations, and addressing the issues of increased rating for GAD and a TDIU. By rating decision of April 2013, a TDIU was granted effective February 20, 2013, and an evaluation in excess of 50 percent for GAD continued to be denied. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Further development is still necessary prior to final adjudication in this case. At the outset, it is important to note that entitlement to a TDIU was granted, effective February 20,2013. However, this claim was filed in connection with a claim for an increased rating for GAD in October 2004. Therefore, since the RO determined that the Veteran was not found to be unemployable until February 20, 2013, the issue of entitlement to a TDIU prior to February 20, 2013 is still before the Board and in appellate status. In reviewing the claim of TDIU on appeal, it is noted that only the Veteran's GAD, bilateral hearing loss, and tinnitus were considered and evaluated in connection with the Veteran's TDIU claim. However, the Veteran is also service-connected for otitis externa, heavy, and evaluated as 10 percent disabling. Although the other service-connected disabilities were evaluated on remand, the Veteran's otitis externa was not. As it is to be determined if the Veteran was unemployable during that aspect of the appellate period prior to February 20, 2013, the Veteran's otitis externa was important to that aspect of the claim. Therefore, prior to final adjudication, his otitis externa should be evaluated since no evaluation of this service-connected disability has been made in almost 9 years. Additionally, the Veteran underwent a VA psychiatric examination in February 2013. During that examination, conflicting findings were made. The Veteran's disability, at the outset, was diagnosed as GAD. The examiner stated that there was no appreciable change in the Veteran's overall anxiety relative to his last several VA examinations in October 2006, November 2004, and April 2004, all performed by the same VA examiner. The examiner who performed the February 2013 VA examination indicated, in pertinent part, that in his opinion, the Veteran's psychiatric condition would not prevent employment. However, the examiner did indicate, in pertinent part, that the Veteran had mild dementia of unknown etiology, and he had not provided a formal diagnosis, and that he was not able to accurately access the Veteran's GAD, due to his dementia and his impaired hearing. Therefore, if the examiner was unable to accurately access the Veteran's GAD, nor had he provided a formal diagnosis, it is difficult to ascertain how he determined that there was no appreciable change in the Veteran's overall anxiety. Moreover, the VA examiner, after having stated the aforementioned findings, indicated that the Veteran's anxiety resulted in only reduced reliability and productivity. Again, it is difficult to understand how the examiner came to this conclusion, when he previously stated he could not accurately access the Veteran's GAD. Each disability must be considered from the point of view of the Veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 312 (2007). The Veteran needs to be provided another VA examination by a different examiner. 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 any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO. 2. The RO should provide a list of the Veteran's service-connected disabilities for the file. 3. The Veteran should undergo a VA psychiatric examination by another examiner to determine the current severity of his service-connected GAD. The claims file must be made available for review prior to the examination. A notation to the effect that this record review took place should be included in the report of the examiner. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The psychiatric examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are attributable to his service-connected GAD. The examiner is also requested, if possible, to determine and specifically list all symptoms as well as the levels of social and occupational impairment experienced by the Veteran that are attributable to his GAD. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's GAD consistent with the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. Additionally, if the Veteran is found to have dementia which is superimposed upon his GAD this should be so stated, and if the examiner is unable to evaluate the Veteran's GAD or make a determination with regard to his social and occupational impairment as a result of his dementia, this should be so stated. 4. The Veteran should also undergo a VA examination for his chronic otitis externa, heavy. Thereafter, a VA examination should be provided with an opinion to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran was unemployable prior to February 20, 2013, solely due to his service-connected disabilities. In this regard, the examiner should be requested to review all pertinent records associated with the claims file from October 2004 to February 2013 and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected e disabilities alone, or in the aggregate, are of such severity to result in unemployability during the stated time period. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, must be made available to the examiner for review. The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected disabilities on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is, during this time period, whether the Veteran was capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. The RO must also consider, if necessary, whether the Veteran's claim for a TDIU prior to February 20, 2013 warrants referral to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 4.16(b), for assignment of an extraschedular rating. 5. When the development requested has been completed, the case should again be reviewed by the RO on the basis of all, including any additional evidence. If the benefit sought on appeal is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ F. JUDGE FLOWERS 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).