Citation Nr: 1340723 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-49 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 30 percent prior to October 7, 2011, and in excess of 50 percent since October 7, 2011, for an anxiety disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2013, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the record. The record was held open for 60 days following the hearing to provide the Veteran with additional time and opportunity to submit medical evidence. However, no records have been received. During the course of the appeal, jurisdiction was transferred to the Detroit, Michigan, RO. A January 2012 rating decision increased the rating from 30 percent to 50 percent for the Veteran's anxiety disorder, effective October 7, 2011. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As an initial matter, the Board notes that a review of the record shows that there are outstanding VA and private treatment records, and Social Security Administration (SSA) records pertinent to the Veteran's claims which should be requested and obtained. Specifically, the Veteran testified that he has been in receipt of SSA benefits since 2010, presumably for his psychiatric disability, and receives treatment from a private psychiatrist. In addition, the most recent VA medical records associated with the paper claims file are dated in April 2008. Accordingly, on Remand the Veteran's SSA, private treatment, and current VA treatment records should be obtained and associated with the record. As regards the Veteran's increased rating claim, the Board observes that the Veteran last underwent a VA mental disorders Disability Benefits Questionnaire examination in November 2011. However, in May 2013 the Veteran testified that his psychiatric disability has worsened since the last examination. In light of the Veteran's testimony, the most recent VA examination may not reflect the current state of the Veteran's psychiatric disorder. As such, the Board finds it is appropriate to afford the Veteran a new VA examination to evaluate the current severity of his anxiety disorder. See Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Finally, the issue of entitlement to a TDIU is raised by the record as part of the Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the Board hearing, there was evidence of the Veteran's unemployability which may be due to his service-connected anxiety disorder presented during his Board hearing. However, the Board cannot currently determine, based on the medical evidence found within the claims file, whether the Veteran is unable to secure and follow substantially gainful employment by reason of his current service-connected disabilities to meet the requirements for a TDIU. Thus, further development of this claim is also needed. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his representative with a notice letter pertaining to his TDIU claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). 2. Request from SSA all of the records related to the Veteran's claim for Social Security disability benefits, including medical records and copies of any decisions or adjudication, and associate them with the claims folder. All negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 3. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all non-VA medical care providers who have treated him for the psychiatric disability, including the "outside psychiatrist" referenced during the May 2013 hearing. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All efforts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. Appropriate efforts must also be made to obtain all available VA treatment records dated since April 2008 and action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims file and provide medical opinions in conjunction with the development requested herein. 4. Thereafter, the Veteran should be scheduled for a VA examination in order to determine the current nature and severity of his anxiety disorder. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. The examiner should specifically address the Veteran's May 2013 hearing testimony. All indicated studies should be completed. A complete rationale must be provided for any opinion provided. The psychiatric examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are attributable to his service-connected anxiety disorder. The examiner is also requested, if possible, to determine and specifically list all manifested symptoms and the levels of social and occupational impairment experienced by the Veteran that are attributable to his PTSD. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's disorder consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner should additionally provide an opinion concerning the impact of the Veteran's service-connected anxiety disorder on his ability to work. The supporting rationale for all opinions expressed must be provided. 5. Thereafter, readjudicate the Veteran's claim for a rating in excess of 30 percent prior to October 7, 2011, and in excess of 50 percent since October 7, 2011, for an anxiety disorder and for a TDIU. If the benefits sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case, and an appropriate period of time should be allowed for response before the case is returned 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). These claims 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. 2013). _________________________________________________ Michael J. Skaltsounis Acting 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) (2013).