Citation Nr: 1448902 Decision Date: 11/04/14 Archive Date: 11/10/14 DOCKET NO. 12-12 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for anxiety disorder. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Robert Lemley, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2007 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In November 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing has been associated with the record. Subsequent to the hearing, the Veteran's agent submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2014). Therefore, the Board may consider such newly received evidence. The Board observes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA and VBMS reveals that, with the exception of VA treatment records dated through February 2012, which were considered in the March 2012 rating decision and April 2012 statement of the case, and the November 2012 Board hearing transcript, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2014). The Veteran is service-connected for an anxiety disorder, evaluated as 30 percent disabling, effective December 27, 2011, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400. He claims that such disability is more severe than as reflected by the currently assigned rating. Additionally, he alleges that such disability, as well as his service-connected right knee patellar tendonitis, evaluated as 10 percent disabling, and tinnitus, evaluated as 10 percent disabling, render him unemployable. The Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the current nature and severity of his service-connected anxiety disorder. In this regard, the Board observes that he was last examined by VA in February 2012. At that examination, the examiner found that the Veteran's psychiatric symptoms were limited to depressed mood, anxiety, and chronic sleep impairments. However, at his November 2012 Board hearing, the Veteran testified that he experienced daily panic attacks and had homicidal ideations. Such statements suggest that there may have been an increase in the severity of the Veteran's anxiety disorder since his last VA examination. Thus, the Board finds that a remand is necessary to schedule the Veteran for an appropriate VA examination in order to assess the current nature and severity of his service-connected anxiety disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board notes that the Veteran claims that he should be service-connected for posttraumatic stress disorder (PTSD) in addition to an anxiety disorder. In this regard, the February 2012 VA examiner specifically found that the Veteran did not meet the DSM-IV criteria for PTSD. However, VA treatment records show that the Veteran has also been diagnosed with PTSD. Moreover, in a June 2012 record, the Veteran's treating advanced practice registered nurse (APRN) indicated that she reviewed the February 2012 examination and found such to be insufficient as the primary diagnosis of an anxiety disorder was incorrect and, rather, the Veteran has PTSD. Therefore, upon reexamination, the VA examiner should render an opinion as to whether the Veteran has a current diagnosis of PTSD and whether any such disability is separate and distinct from the Veteran's anxiety disorder. Moreover, if such is considered to be separate and distinct, the examiner should be requested to note the symptoms attributed solely to PTSD and those attributed solely to an anxiety disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when the effects of a service-connected disability have not been clinically disassociated from those of a non-service-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability). The Board notes that the Veteran receives psychiatric treatment from the West Haven VA Medical Center (VAMC). The most recent records contained in the claims file are dated in February 2012. Therefore, while on remand, all outstanding treatment records from the West Haven VAMC dated from February 2012 to the present should be obtained. Finally, the Board notes that the outcome of the issue of entitlement to a higher initial rating for anxiety disorder could affect the Veteran's pending claim of entitlement to TDIU. Thus, the latter issue is inextricably intertwined with the former issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, consideration of the Veteran's TDIU claim must be deferred pending the readjudication of his claim for a higher initial rating for anxiety disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the West Haven VAMC dated from February 2012 to the present. 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. § 5104A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above development, and following the receipt of any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected anxiety disorder. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected anxiety disorder. He or she should also indicate whether the Veteran has more than one mental disorder, specifically to include a separate diagnosis of PTSD. In this regard, the examiner should consider the June 2012 statement from the Veteran's treating VA APRN. The examiner should state whether any diagnosis of PTSD is part and parcel of his anxiety disorder, or separate and distinct from such disability. Moreover, if such is considered to be separate and distinct, the examiner should identify the symptoms attributed solely to PTSD and those attributed solely to anxiety disorder. If the examiner cannot separate the symptoms between the two disorders, he or she should so indicate. 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 functional impact of the Veteran's anxiety disorder on his occupational and social functioning. All opinions expressed should 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, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). _________________________________________________ A. JAEGER 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) (2014).