Citation Nr: 1329238 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 13-07 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for an anxiety disorder not otherwise specified (claimed as posttraumatic stress disorder). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam era from August 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which continued at 10 percent the Veteran's anxiety disorder not otherwise specified and claimed as posttraumatic stress disorder (PTSD) (hereinafter "anxiety disorder"). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that the only pertinent records are VA medical records dated from September 2009 to September 2011. All other documents are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Here, a remand is required to obtain another VA examination and an opinion on whether his disabilities preclude him from obtaining gainful employment. First, the Veteran must be afforded a new VA examination. Although he received an examination in April 2010, the Veteran alleged in a September 2011 appellant statement that his symptoms had worsened and were "more debilitating than ever." The record supports the Veteran's claim. A December 2010 rating decision continued the Veteran's anxiety disorder at 10 percent based on the absence of panic attacks, depressed mood, mild memory loss, anxiety, suspiciousness and chronic sleep impairment. However, in the September 2011 appellant statement, the Veteran asserted that it was "not unusual for me to have two to four anxiety/panic attacks daily almost every day of the week." Moreover, VA medical records dated December 2011 diagnosed the Veteran with moderate to severe depression, memory impairment, and generalized anxiety disorder; the Veteran also reported that he felt recurrent suspiciousness. Finally, a September 2012 VA medical record noted a Global Assessment of Functioning (GAF) score of 45. Thus, because the Veteran's symptoms have worsened since his last examination, he should be provided a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Second, the Veteran requires an opinion as to whether his service-connected disabilities preclude him from gainful employment. In the appellant statement dated September 2011, the Veteran said, "I do not believe I could maintain a forty hour work week of gainful employment of any kind...my psychological issues seem worse and more debilitating than ever." In an appellant statement dated March 2013, the Veteran reiterated "I was never able to stay in a job for long." Given the evidence of a current disability, the Veteran's claim for the highest rating possible, and the evidence of unemployability, the record raises a claim for total disability based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). Because there is no explicit opinion as to whether the Veteran's current service-connected disabilities, in combination, would be sufficient to preclude gainful employment, VA must provide him with one. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Veteran's percentage ratings do not currently meet the scheduler requirements for a TDIU under 38 C.F.R. § 4.16(a) (2011). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Finally, in a March 2013 VA Form 9, the Veteran asserted that "VA continues to sight [sic] my being treated at the West Palm Beach VA. Let me be perfectly clear I never was nor do I have any recollection of treatment for any condition at that facility." Virtual VA records show VA medical records dated from September 2009 to January 2013 as originating from West Palm Beach, Florida. However, the contents of those records are in fact VA medical records from Gainesville, Florida. The Board requests that the RO make appropriate changes to reflect that fact. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his anxiety disorder. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file. All reasonable attempts should be made to obtain any identified records and to obtain any outstanding VA treatment. If any records cannot be obtained after reasonable efforts have been made, a formal determination that such records do not exist or that further efforts to obtain such records would be futile should be issued and documented in the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). The RO should also make any necessary changes to reflect that the Veteran has not been treated at the West Palm Beach VA Medical Center. 2. After completing #1 above, schedule the Veteran for a VA examination to determine severity of his anxiety disorder and an opinion on the effect of his service- connected disabilities on his ability to obtain gainful employment. The claims file and Virtual VA file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. An explanation for all opinions expressed should be provided. If an opinion cannot be provided without resort to speculation, it should be noted in the examination report, and an explanation provided for that conclusion. After a review of the evidence of record, the examiner should report the severity of all signs and symptoms of the service-connected anxiety disorder, describe the impact of the disability on occupational and social functioning, and provide a GAF score. Thereafter, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service- connected disabilities (anxiety and type II diabetes mellitus), combined, would preclude gainful employment for which the Veteran's education and occupational experience would otherwise qualify him. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. In offering any opinion, the examiner should consider the full record, to include service treatment records, medical records, the Veteran's lay statements, and any appropriate medical literature. 3. The RO should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. If, after completion of the above instructions, the Veteran's percentage ratings do not meet the scheduler requirements for a TDIU under 38 C.F.R. § 4.16(a), the RO should refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). 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). _________________________________________________ CHERYL L. MASON 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).