Citation Nr: 1327980 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-32 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for anxiety disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2011, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. At that time, he submitted additional evidence with a waiver of RO review. During the hearing, the Veteran testified that he retired 10 years earlier and his psychiatric disability was a factor in his retirement. As he is challenging the initial disability rating assigned for his anxiety disorder, and the record raises an assertion that he is unemployable because of that disability, the determination as to whether he is entitled to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is part of the initial rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). An August 2012 rating decision denied TDIU. However, review of that rating decision and notice letter indicates that only the Veteran's service-connected chronic kidney disease and type 2 diabetes mellitus were considered. As a claim for a TDIU due to service-connected anxiety disorder has been raised, the issue of entitlement to a TDIU is before the Board. In September 2011, the Veteran again submitted additional evidence with a waiver of RO review. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The Board finds that further development is needed on both claims on appeal. With respect to the rating for the Veteran's anxiety disorder, he was last examined by VA in April 2009. January 2010 and May 2011 VA treatment notes and a September 2011 private treatment note indicate an increase in his anxiety symptoms. He also endorsed an increase in symptoms during the June 2011 hearing. Not only have over four years passed since the VA examination, but the subsequent treatment notes and testimony indicate that his disability may have since worsened. Thus, he should be afforded a new examination to determine the current nature and severity of his disability. With respect to the TDIU, the RO denied the Veteran's claim for a TDIU in an August 2012 rating decision. However, the record indicates that the RO only considered the Veteran's service-connected chronic kidney disease (rated at 60 percent) and type 2 diabetes mellitus (rated at 20 percent). Although the Veteran may have indicated on his claim for a TDIU that only his kidney disease and diabetes prevent him from engaging in substantially gainful occupation, the Board must consider all service-connected disabilities. In addition to the anxiety disorder on appeal, he is also service-connected for postoperative residuals of a recurring pilonidal cyst, rated at 10 percent; peripheral sensory neuropathy of the lower left extremity, rated at 0 percent; peripheral sensory neuropathy of the right lower extremity, rated at 0 percent; and erectile dysfunction, rated at 0 percent, for a total combined rating of 80 percent. Thus, all of the service-connected disabilities must be considered on remand. Therefore, the Veteran should be scheduled for an examination to determine whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Prior to the examinations, any outstanding VA medical records should be obtained. The record contains treatment notes from the Tampa VA Medical Center (VAMC), including the Pasco County (New Port Richey) Vet Center, through October 2009. Thus, any treatment notes since that time not already of record should be obtained. The Board notes that the August 2012 rating decision cites to VA treatment notes from the Tampa VAMC from December 2001 to August 2012. However, review of the record shows only sparse treatment notes since October 2009. Also, the August 2012 rating decision cites to pertinent evidence not in the claims file or in the Veteran's Virtual VA file, including the Veteran's claim for a TDIU, response from the VA Vocational Rehabilitation and Education program, response from the Social Security Administration, and a June 2012 VA examination report. Thus, all of that evidence, likely contained in a temporary folder, should be associated with the claims file or added to the Veteran's Virtual VA file. Accordingly, the case is REMANDED for the following actions: 1. Obtain all records of treatment from the Tampa VAMC, including the Pasco County (New Port Richey) Vet Center, since October 2009. 2. Associate with the claims file all of the evidence cited in the August 2012 rating decision that is not already in the Veteran's Virtual VA file, likely contained in a temporary folder. 3. Then, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected anxiety disorder. The examiner must review the claims file and must note that review in the report. All indicated tests and studies are to be performed, and the examiner should review the results of any testing. The examiner should discuss the impact of the anxiety disorder on the Veteran's ability to obtain and maintain employment, and on his social and occupational functioning. 4. Then, schedule a VA examination to determine whether the Veteran is unemployable due to service-connected disabilities. The examiner must review the claims file and must note that review in the report. All indicated tests and studies are to be performed, and the examiner should review the results of any testing. The rationale for the requested opinions should be provided. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities of chronic kidney disease, diabetes mellitus, postoperative residuals of a recurring pilonidal cyst, peripheral sensory neuropathy of the lower extremities, anxiety disorder, and erectile dysfunction, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The examiner should consider all service-connected disabilities, and the Veteran's age, work history, and relevant training and education. The examiner should not consider nonservice-connected disabilities or age in making the opinion. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be needed due to the service-connected disabilities. 5. Then, readjudicate the claims, including adjudication of the claim for a TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claims to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).