Citation Nr: 1432007	
Decision Date: 07/16/14    Archive Date: 07/22/14

DOCKET NO.  09-03 609	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial rating higher than 30 percent for an adjustment disorder with mixed anxiety and depressed mood (hereinafter mental disorder).
 
2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel



INTRODUCTION

The Veteran had active duty service from March to April 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for a psychiatric disability and assigned a 30-percent rating, effective July 29, 2004.
 
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In addition to other matters addressed below, the January 2014 VA examination report reflects the examiner conducted the examination pursuant to the criteria of DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FIFTH EDITION (DSM-V).  As the Veteran's representative has pointed out, regulations require VA to adjudicate mental disorder claims using DSM-IV.  See 38 C.F.R. § 4.125(a) (2013).  Further, other instructions in the October 2012 Board remand were not explicitly complied with, e.g., assigning a Global Assessment of Functioning (GAF).  See Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Inform the examiner who conducted the January 2014 examination that DSM-IV must be followed, to include assignment of a GAF.  Also inform the examiner that service connection for an anxiety disorder is in fact in effect; thus, the issue is the severity of the service-connected disability; and, any reported symptoms related to that disability must be noted.  Ask the examiner to determine if the service-connected anxiety disorder is superimposed upon the personality disorder diagnosed in Axis II.

Ask the examiner to specifically identify, if possible, the symptomatology related to the service-connected anxiety disorder, and that related to a non-service-connected mental disorder or personality disorder.  If it is not possible to do so, that must be stated in the addendum.  As part of the review, the examiner is asked to opine whether there is at least a 50-percent probability the Veteran's service-connected disabilities render her unable to obtain and maintain substantially gainful employment.  Her age is not a factor for consideration.

In the event the examiner who conducted the January 2014 examination is no longer available, refer the claims file to an equally qualified examiner.  Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination.  The claims file must be reviewed by the examiner.

3.  After the above is complete, if the evidence shows any period since July 29, 2004, when the Veteran was unemployable and did not meet the percentage requirements for schedular consideration for TDIU, her claim should be referred to the Director, VA Compensation and Pension Service, for adjudication in accordance with 38 C.F.R. § 4.16(b) (2013).

4.  If the decision remains in any way adverse to the Veteran, she and her representative should be provided with a Supplemental statement of the case (SSOC).

The case should thereafter be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran need take no action unless otherwise notified.  VA will notify him if further action is required on his part.  He 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).

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).



_________________________________________________
Mark D. Hindin
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).