Citation Nr: 1327791 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-01 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 50 percent for anxiety neurosis with posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michelle A. Marshall, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which continued the 50 percent rating assigned for anxiety neurosis with PTSD and denied the claim for a TDIU. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in January 2011. A transcript is of record. The Veteran submitted additional evidence directly to the Board in November 2012, which was accompanied by a waiver of RO consideration. The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2012). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Additional development is needed before the Board can adjudicate the claims. The Veteran's service-connected anxiety neurosis with PTSD was last evaluated in July 2010, over three years ago. During his January 2011 hearing, the Veteran provided subjective testimony regarding his psychiatric symptomatology. The Board has interpreted his testimony as to a worsening of his condition since the July 2010 VA examination. When a Veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the Veteran's current condition, the VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). A more contemporaneous VA examination should be scheduled on remand and recent VA treatment records should be associated with the claims folder. The Veteran does not meet the schedular criteria for entitlement to a TDIU. See 38 C.F.R. § 4.16(a). The Board finds that this issue is inextricably intertwined with the issue of entitlement to a rating in excess of 50 percent for anxiety neurosis with PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Louis Stokes Cleveland VA Medical Center, dated since August 2010. 2. When the foregoing development has been completed, schedule the Veteran for an appropriate VA examination to determine the current severity of his anxiety neurosis with PTSD. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. All appropriate tests and studies must be accomplished and all clinical findings reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected anxiety neurosis with PTSD renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Finally, readjudicate the issues on appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant 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 or by the U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).