Citation Nr: 1330553 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-05 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 50 percent for anxiety disorder as residual of anoxic brain injury. 2. Entitlement to an initial disability evaluation in excess of 30 percent for sleep apnea. 3. Entitlement to an initial compensable disability evaluation for lower extremity hyperreflexia. 4. Entitlement to an initial compensable disability evaluation for occipital neuralgia (headaches). 5. Entitlement to a separate disability evaluation for physical residuals of anoxic brain injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had service from February 1986 to April 1986, March 1991 to March 1995, and from August 2004 to May 2007. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Virtual VA claims file has been reviewed. A claim for increased evaluation includes a claim for a TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran is already in receipt of TDIU benefits. 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 Board observes that the Veteran was most recently afforded a VA examination in connection with his claim for an increased disability rating for his anxiety disorder in August 2009. The Veteran's sleep apnea, lower extremity hyperreflexia, and occipital neuralgia were last evaluated in 2007 and 2008, in connection with his initial claims for service connection. Additionally, the Veteran has not been provided with a neurological evaluation to determine if there are any physical residuals of anoxic brain injury; the Veteran has alleged that he is entitled to a separate evaluation for physical damage to the brain as a result of his anoxic brain injury. When an initial rating is assigned in connection with the grant of entitlement to service connection for a disability, the rating, as noted, may be different during different portions of the appeal period, i.e., staged. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Similarly, the Veteran, through his representative, asserts that his symptoms are more severe than presently evaluated. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). As such, the Board finds that the Veteran should be afforded new VA examinations in order to accurately evaluate the current severity of his service-connected disabilities on appeal. Additionally, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). To the extent that there are any VA medical records related to the Veteran's claims for increased ratings, such records must be obtained and associated with his claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's VA treatment records from any VA facility identified by the Veteran or in the record, for the period from January 2010 through April 2012 and since November 2012. 2. Schedule the Veteran for a VA psychiatric examination to ascertain the current severity and manifestations of his service-connected anxiety disorder, as residual of anoxic brain injury. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected sleep apnea. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 4. Schedule the Veteran for a VA neurology examination to ascertain the current severity and manifestations of his service-connected lower extremity hyperreflexia and occipital neuralgia, as well as to determine if there are any physical residuals to the brain from the Veteran's anoxic brain injury. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 5. Following the above-directed development for the claims of entitlement to increased disability ratings, the RO should re-adjudicate that claims and, if a grant of the benefit is not in order, an SSOC should be issued prior to a return to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs