Citation Nr: 1614460 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 13-08 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for service-connected anxiety disorder, not otherwise specified, with a history of alcohol and anxiolytic dependence. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). In the October 2011 rating decision, the RO granted service connection for the Veteran's diagnosed anxiety disorder, not otherwise specified, with history of alcohol and anxiolytic dependence, and assigned an initial 10 percent disability rating. The Veteran filed a timely notice of disagreement and in September 2014 the RO increased his initial rating to 30 percent disabling. As this rating is still less than the maximum benefit available, the appeal is still pending. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (holding that a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The claim was remanded by the Board in April 2015 to afford the Veteran the opportunity to identify or submit any additional pertinent evidence in support of his claim and procure copies of all records which have not previously been obtained from identified treatment sources and VA medical centers, as well as to upload the Veteran's Social Security Administration (SSA) records to his electronic claims file. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The record supports that the Veteran's service-connected anxiety disorder, not otherwise specified, with a history of alcohol and anxiolytic dependence, may have worsened since his last VA examination; as such, a new VA examination is warranted. Specifically, in April 2015 the Veteran's medications were changed after he reported losing interest in doing things he enjoyed over the past five years. See April 2015 VA treatment report. According to a May 2015 VA treatment record, the Veteran was referred for evaluation and treatment recommendations of worsening mood symptoms. At that time, the Veteran's medication was increased to target depression, lack of motivation, and anhedonia. The Veteran's affect was described as anxious in April 2015 and as restricted to dysphoric range, though nonlabile, in May 2015. The Veteran last appeared for VA examinations as to his anxiety disorder, not otherwise specified, with a history of alcohol and anxiolytic dependence in May 2014. During the May 2014 VA examination, the Veteran's affect was even-keeled with some reduced range. Since that examination, the Veteran's psychiatric medication has been adjusted and symptoms of worsening mood and affect have been reported, indicating a possible worsening of symptoms. When the evidence suggests that a disability has worsened since the veteran's last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Thus, the Veteran should be afforded a current VA examination to assess the current severity of his service-connected anxiety disorder, not otherwise specified, with a history of alcohol and anxiolytic dependence. Records also reflect that the Veteran receives ongoing psychiatric care at the Maplewood VA Medical Clinic. While the Veteran's claim is in remand status, the AOJ must obtain all outstanding VA medical records. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Associate any outstanding relevant VA treatment records from December 2015 to present. If they are unable to be obtained, a negative response should be recorded and added to the claims file. 2. Then schedule the Veteran for a VA examination by an examiner with the sufficient expertise to ascertain the severity and manifestations of his service-connected anxiety disorder, not otherwise specified, with a history of alcohol and anxiolytic dependence. The claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner should also provide an opinion concerning any impact of the Veteran's service-connected anxiety disorder, not otherwise specified, with a history of alcohol and anxiolytic dependence may have in an occupational setting. The examiner should offer a complete rationale for any opinions that are expressed and should cite the appropriate evidence to support his or her conclusions. 3. Then readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).