Citation Nr: 1334512 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-30 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for an anxiety disorder. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asbestosis. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for obsessive compulsive disorder. 4. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1964 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. For the reasons discussed below, the Board finds that that the appellant has filed a timely notice of disagreement on the issues of whether new and material evidence has been received to reopen claims for entitlement to service connection for asbestosis and obsessive compulsive disorder and entitlement to a TDIU. 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 appellant was afforded a VA examination in June 2008. The VA examiner noted that the appellant did not have suicidal thoughts. The appellant has asserted that he has had suicidal thoughts and that he cannot handle his own financial affairs. See August 2008 notice of disagreement; July 2009 substantive appeal. In his July 2009 substantive appeal, the appellant reported that he told a physician at James A. Haley Hospital that he had suicidal thoughts. He also noted receiving treatment from a Dr. P., a private psychologist. Private treatment records from the sources cited by the appellant have not been obtained during the period on appeal. The Board finds that the claim should be remanded to attempt to obtain the records. Additionally, the appellant's statements regarding his suicidal thoughts, anxiety attacks, and inability to handle his finances indicate his service-connected disability may have worsened since the previous examination in June 2008. See August 2009 substantive appeal. The appellant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary prior to appellate adjudication of this issue. The VA treatment records in the file only date to January 2009. Consequently, the Board requests the appellant's complete VA treatment records from January 2009 to present. In regard to the appellant's claims to reopen his claims for entitlement to service connection for asbestosis and obsessive compulsive disorder and his claim for entitlement to a TDIU, the Board finds these issues need to be remanded for issuance of a statement of the case (SOC). In a June 2009 rating decision, the RO denied the appellant's claims to reopen his claims for entitlement to service connection for asbestosis and obsessive compulsive disorder. In an August 2009 statement, the appellant requested that his "service-connected claim for asbestosis be reopened based on medical not used in making the decision to deny my claim for service connection." In the July 2009 substantive appeal, the appellant also submitted arguments regarding asbestosis, obsessive compulsive disorder, and entitlement to a TDIU. The Board finds that the appellant's statements can be construed as a notice of disagreement with the June 2009 denial of his claims for reopen. See 38 C.F.R. § 20.201 (2013). The record does not reflect that a SOC has been issued in response to the appellant's notice of disagreement pursuant to 38 C.F.R. § 19.26 regarding the claims to reopen his claims for entitlement to service connection for asbestosis and obsessive compulsive disorder. In this situation, the Court has indicated that the proper action is to remand the issue to the RO for appropriate action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) ("Thus, the next step was for the RO to issue an SOC on the denial of the . . . claim, and the Board should have remanded that issue to the RO, not referred it there, for issuance of that SOC."). As such, the Board finds that this issues should be remanded for the issuance of a SOC by the RO. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the appellant's VA treatment records from January 2009 to present. If no records are available, the claims folder must indicate this fact. 2. Contact the appellant and request that he identify all private providers of medical treatment since 2008, to include the provider at James A. Haley Hospital and Dr. P. After securing proper authorization, request all records from any providers identified by the appellant. If no records are available, the claims folder must indicate this fact. 3. Thereafter, schedule the appellant for a VA examination to evaluate the current nature and severity of his service-connected anxiety disorder. The examiner should document all subjective and objectively observed symptoms, and assign all appropriate diagnoses to those symptoms based on the DSM-IV criteria. If more than one diagnosis is appropriate, if possible, the examiner should differentiate which symptoms are associated with which diagnosis and assign a separate GAF score to each disorder. If the examiner is unable to separate out the effects of the appellant's anxiety disorder from any other psychiatric disorders, he/she should expressly state so. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. 4. Provide the appellant with a statement of the case as to the issues of whether new and material evidence has been received to reopen claims for entitlement to service connection for asbestosis and obsessive compulsive disorder and entitlement a TDIU. The appellant should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claims should not be certified to the Board. 5. Thereafter, readjudicate the issue on appeal of entitlement to an evaluation in excess of 30 percent for an anxiety disorder. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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 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). _________________________________________________ MILO H. HAWLEY 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).