Citation Nr: 1326050 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-04 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 30 percent for obsessive compulsive disorder (OCD), previously diagnosed as anxiety disorder. 2. Entitlement to a rating in excess of 10 percent for bronchial asthma. 3. Entitlement to total disability due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1970 to January 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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 The Veteran is seeking increased ratings for his service-connected OCD and asthma. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In his July 2013 written brief the Veteran's representative specifically asserted that both of the Veteran's service-connected conditions had gotten worse since his previous VA examinations in 2008. The Veteran was last provided with a VA examination regarding his asthma and OCD in May 2008. Additionally, the record suggests the Veteran receives ongoing medical treatment from a VA medical facility; however the claims file only contains VA treatment records through 2008, nearly five years ago. The claims file also includes records from the Social Security Administration (SSA), however these records are only through 2007. However, as discussed the Veteran and his representative have specifically alleged both service-connected conditions have gotten worse in the previous five years. Because the Veteran reported his conditions have worsened and there is no more recent VA examination to adequately evaluate his current condition, the Board finds a remand for a new examination is required. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board is unable to determine if the Veteran is currently totally disabled until there is a determination of the current level of his service-connected OCD and asthma. Therefore, the Board also remands the claim for TDIU as it is intertwined with the above referenced claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA treatment records not already obtained from the VA Medical Center in San Juan, Puerto Rico, or any other VA facility at which the Veteran has received medical treatment. If no such records are available, that fact must be noted for the record. 2. After obtaining the updated VA treatment records, schedule the Veteran for an examination to evaluate the nature and severity of his service-connected obsessive compulsive disorder (OCD). The examiner should be provided with the Veteran's claims file, including the updated treatment records, and a complete rationale should be provided for any opinion expressed. All required testing and evaluation should be completed. The examination report should note the severity of the Veteran's psychiatric disorder in terms conforming to the applicable rating criteria, including assessment of occupational and social impairment caused by specific symptoms. A Global Assessment of Functioning (GAF) score should be provided. The examiner should specifically address the Veteran's contention that his condition has worsened since his previous VA examination in May 2008. The examiner should provide the rationale for all opinions expressed. 3. After obtaining the updated VA treatment records, schedule the Veteran for an examination to evaluate the nature and severity of his service-connected bronchial asthma. The examiner should be provided with the Veteran's claims file, including the updated treatment records and a complete rationale should be provided for any opinion expressed. All required testing and evaluation should be completed, including pulmonary function testing. The examiner should specifically address the Veteran's contention that his condition has worsened since his previous VA examination in May 2008. 4. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable 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 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). _________________________________________________ T. D. JONES Acting 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).