Citation Nr: 1341344 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 12-08 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for depression, generalized anxiety order, and panic disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD S. Syverson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran claims entitlement to a rating in excess of 50 percent for depression, generalized anxiety disorder, and panic disorder. A VA psychological examination was provided in January 2011. Since that examination, which was almost three years ago, the Veteran has asserted that her condition has worsened. As a result, the Board finds that an additional examination is necessary to adequately assess the appropriate rating for the Veteran's depression, generalized anxiety disorder, and panic disorder. Additionally, the Veteran was unemployed at the time of the appeal and has indicated that her anxiety and panic attacks make it impossible for her to complete a job interview. Therefore, the issue of entitlement to TDIU has been raised, and an examination that addresses the Veteran's employability is warranted. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran's current rating is 50 percent, rendering her ineligible for consideration of TDIU on a schedular basis. 38 C.F.R. § 4.16(a) (2013). Should the Veteran's rating remain at 50 percent, consideration should be given to whether referral for extraschedular consideration is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain any records of the Veteran's treatment for depression, generalized anxiety disorder, and panic disorder through the VA Medical Center (or its community based outpatient clinics) since May 2012 and associate the records with the claims file. If no such records exist, associate with the claims file documentation of the request and a negative reply. 2. Send the Veteran a letter requesting that she indicate if she has received any non-VA treatment for her depression, generalized anxiety disorder, and panic disorder that is not evidenced by the current record. If so, provide the Veteran with the necessary authorization forms for the release of private treatment records. These records must then be obtained and associated with the claims file. Advise the Veteran that she may also submit any evidence or further argument relative to the claim at issue. 3. Provide the Veteran with a VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability," and request that she complete the form and return it in a timely manner. 4. After allowing an appropriate time to complete the above directives, ensure that the Veteran is scheduled for a VA psychiatric examination, if possible with an examiner who has not previously examined the Veteran. Prior to the examination, provide the examiner access to the claims file. A notation indicating that the claims file was reviewed should be included in the examiner's report. The examiner is asked to accomplish the following: (a) Provide a detailed explanation of the Veteran's employment history, pertinent medical history, current complaints, and the nature and extent of any disability due to depression, generalized anxiety disorder, and panic disorder, including, if possible, a list of symptoms and a description of the level of occupational and social impairment attributable to the Veteran's depression, generalized anxiety disorder, and panic disorder. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has been unable to secure and follow a substantially gainful occupation (i.e., work that is more than marginal and permits the individual to earn a living wage) at any time since October 2010 due solely to her disability from depression, generalized anxiety disorder, and panic disorder. If the examiner answers in the affirmative, he or she should specify the approximate time frame(s) since October 2010 for which this applies. (c) Provide a clear rationale (explanation of reasoning) to support each opinion, including a discussion of the facts of the Veteran's case and applicable medical principles. All necessary studies and tests should be conducted. 5. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the issues that are the subject of this Remand. If any benefit sought is not granted, provide the Veteran with a supplemental statement of the case and allow for an appropriate opportunity for response before returning the claims file to the Board for further appellate action. The Veteran 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. 2013). _________________________________________________ CHERYL L. MASON Chief 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).