Citation Nr: 1326736 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 04-02 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased rating for generalized anxiety disorder with depressive features, currently rated as 30 percent disabling, to include entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESSES AT HEARING ON APPEAL Veteran and A.L. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from August 1974 to March 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2003 by the Department of Veterans Affairs (VA) San Juan regional office (RO). In the decision, the RO denied a rating higher than 30 percent for the Veteran's service-connected anxiety disorder. A hearing was held at the RO in May 2005 before the undersigned Veterans Law Judge. The Board remanded the case for additional development in March 2006, March 2007, and March 2008. In April 2012, the Board denied entitlement to an increased rating for generalized anxiety disorder with depressive features. The Veteran appealed the Board's April 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Memorandum Decision, the Court vacated the Board's decision and remanded the matter to the Board. 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 The Veteran was examined on multiple occasions in conjunction with his claim for an increased rating. However, in 2010, VA obtained a medical addendum opinion regarding the Veteran's current level of functioning, rather than providing the Veteran a full VA psychiatric examination. The Court's Memorandum decision essentially indicated that rather than obtaining the addendum opinion, the Veteran should have been afforded a full VA examination. Thus, he should be scheduled for a new VA psychiatric examination. Further, the Board notes that the Veteran was employed by the Postal Service and recently retired. During his employment, the record reflects that he was injured in February 1998, and was possibly examined by the Postal Service at some point after May 12, 2008. As such, the complete medical records as well as pertinent personnel records should be obtained from the Veteran's former employer. With regard to his employment, the Veteran currently contends that he is unemployable due to his psychiatric disability. In this regard, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that, when evidence of unemployability is presented in cases such as this, the claim for TDIU may be considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, in this case, the Veteran's claim for a TDIU is part and parcel of his increased rating claim, and as such, this issue is incorporated into the issue on appeal. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an updated VCAA letter which addresses the increased rating claim as well as the claim for a TDIU. 2. After securing the appropriate medical release, obtain and associate with the record copies of all clinical, medical, and personnel records, which are not already part of the record, of the Veteran's treatment while employed by the Postal Service. These records should include (but are not limited to) those pertaining to a February 1998 injury as well as an examination which might have been conducted after May 12, 2008. The RO/AMC must make two attempts for the relevant treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 3. Thereafter, schedule the Veteran for a VA psychiatric examination. The contact letter which informs the Veteran of the scheduled examination should be made a part of the record. The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for mental health disorders. The DBQ should be filled out completely as relevant. The examiner should be provided a copy of the rating criteria pertaining to the Veteran's psychiatric disorder. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The Veteran's record must be made available to, and reviewed by, the examiner prior to the examination. The report of examination should include a detailed description of all clinical manifestations. The examiner should comment upon the effects of the Veteran's service connected disability on ordinary activity and on how the disability impairs him functionally. The examiner should assign a Global Assessment of Functioning score and explain the significance of the score. The examiner should provide an opinion as to whether the Veteran's service-connected psychiatric disability and left clavicle scar alone prevent him from engaging in a substantially gainful occupation. The opinion should address whether his service-connected disabilities are so disabling as to render him unemployable. The Veteran's age and the effects of non-service-connected disabilities cannot be factors for consideration in making the determination. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The RO/AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 5. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record, and should consider if an increased rating, an extraschedular rating, and a TDIU rating are warranted. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).