Citation Nr: 1420164 Decision Date: 05/06/14 Archive Date: 05/16/14 DOCKET NO. 11-09 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for anxiety disorder not otherwise specified (NOS). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected anxiety disorder NOS (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1968 to June 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board observes that, in May 2009, the Veteran submitted a VA Form 21-22 (Appointment of Veteran Service Organization (VSO) as Claimant's Representative) in which he designated the Veterans of Foreign Wars of the United States as his representative. In October 2012, the Veteran submitted a VA Form 21-22 in which he designated the Disabled American Veterans as his representative. The Board recognizes this change in representative. In November 2012, VA received a Review Post Traumatic Stress Disorder Disability Benefits Questionnaire (DBQ) completed by a private psychologist. This document was not considered by the agency of original jurisdiction (AOJ) in the March 2011 statement of case; however, initial AOJ consideration of this evidence was waived by the Veteran's representative in its April 2014 Informal Hearing Presentation. See 38 C.F.R. § 20.1304 (2013). As regards characterization of the appeal, the Board notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected anxiety disorder, the issue of entitlement to a TDIU due to the service-connected psychiatric disability has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's claim for higher initial rating, it has been listed on the first page of this decision. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there are paperless, electronic(Virtual VA and Veteran Benefits Management System (VBMS) files associated with the Veteran's appeal6 A review of the documents in Virtual VA reveals an April 2014 Informal Hearing Presentation submitted by the Veteran's representative. The remaining documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Moreover, the Veteran's VBMS file does not contain any documents at this time. For reasons expressed below, the matters on appeal are being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional AOJ action in the appeal is warranted. The Veteran was last afforded a VA examination in February 2011 in order to determine the severity of his service-connected anxiety disorder. A VA Review Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ) report, completed by the private psychologist in October 2012, indicates that the Veteran had resigned from his job in March 2011 after a verbal altercation with his former boss and generally attributed this action to his service-connected anxiety disorder. The private psychologist also reported various other symptoms, to include mild memory loss and suicidal ideations, which suggest worsening symptoms; however, the severity or frequency of these symptoms was not detailed. Considering such reports, the Board finds that the evidence suggests the possible worsening the Veteran's disability, warranting re-examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore, as previously stated, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability. See Rice, supra. In light of the October 2012 PTSD DBQ report suggesting that the Veteran had resigned his job in March 2011 following a verbal altercation with his boss, and the suggestion of the private psychologist that this outburst as the result of the Veteran's service-connected anxiety disorder, the issue of entitlement to a TDIU due to the service-connected psychiatric disability has been raised in this case, and should be adjudicated by the AOJ. Moreover, on remand, the AOJ should obtain an opinion regarding the effect the Veteran's service-connected disability has on his employability. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Prior to obtaining further arranging for the Veteran to undergo further examination, to ensure that the record is complete, the AOJ should undertake appropriate action to obtain all outstanding, pertinent records. The Board notes that it is not clear whether the Veteran receives regular treatment from any provider with regard to his anxiety disorder. Therefore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his service-connected anxiety disorder and to submit any treatment records or statements addressing the severity of such disorder. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the matters on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his service-connected anxiety disorder since May 2009 and to submit any additional statements addressing the severity of such disorder. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must 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) . 2. After completion of the above development, and after obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current severity of his service-connected anxiety disorder. All indicated tests and studies should be undertaken to identify the degree of social and occupational impairment attributable to his anxiety disorder. The contents of the entire claims file (paper and electronic) to include a complete copy of this REMAND, must be made available for review of the Veteran's pertinent medical history. The examiner should identify the nature and frequency or severity (as appropriate), of all psychiatric symptoms found to be present, to include the impact of such on the Veteran's occupational and social functioning. He or she should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examination conducted in February 2011 and any lay and clinical evidence suggesting that his overall mental health symptoms have subsequently worsened, resulting in more severe occupational and social impairment. Additionally, the examiner should provide a full multi-axial diagnosis pursuant to DSM-IV, to include a GAF score. The examiner should also describe the overall impact of the Veteran's psychiatric problems on his occupational and social functioning. The examiner should also offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected anxiety disorder, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The examiner should specifically address whether the Veteran's resignation from his job in March 2011 was attributable to his service-connected anxiety disorder. All opinions expressed must be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, adjudicate the claims on appeal based on consideration of all pertinent evidence (to include any evidence received after the March 2011 statement of the case), and legal authority.. 4. If any benefit sought on appeal is denied, the Veteran and his representative should be issued a supplemental statement of the case, and be afforded an appropriate period of time for response before the claims file is returned to the Board. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims e 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).