Citation Nr: 1629233 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 12-30 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased initial rating for service-connected panic disorder with depression and posttraumatic stress disorder (PTSD) (hereinafter, "panic disorder"), rated as 30 percent disabling prior to January 2, 2013, and as 50 percent disabling from that date. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2013, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's service-connected panic disorder to 50 percent effective January 2, 2013. In February 2015, the Board remanded the current issue for further evidentiary development, along with the issues of entitlement to service connection for tinnitus and entitlement to service connection for PTSD. In November 2015, the AOJ granted service connection for tinnitus and PTSD. The issue of service connection for tinnitus has thus been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements). Concerning the PTSD claim, in the November 2015 rating decision, the AOJ incorporated that claim into the panic disorder claim on appeal, and increased the rating to 30 percent prior to January 2, 2013. As the increased ratings for the claim on appeal do not represent a total grant of the benefits sought, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). As further discussed below, the Board finds that the evidence raises a claim for a TDIU due to panic disorder and ischemic heart disease, and has therefore included that claim on the title page of this decision, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to January 2, 2013, the Veteran's panic disorder was manifested by an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. It was not manifested by occupational and social impairment with reduced reliability and productivity. 2. From January 2, 2013 to March 9, 2015, the Veteran's panic disorder was manifested by occupational and social impairment with reduced reliability and productivity. It was not manifested by occupational and social impairment with deficiencies in most areas. 3. Since March 9, 2015, the Veteran's panic disorder has been manifested by occupational and social impairment in the areas of work, family relations, and mood, but has not been productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. Prior to January 2, 2013, the criteria for a rating in excess of 30 percent for service-connected panic disorder were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9499-9412 (2015). 2. Prior to March 9, 2015, the criteria for a rating in excess of 50 percent for service-connected panic disorder were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9499-9412 (2015). 3. Since March 9, 2015, the criteria for a rating of 70 percent, but no higher, for service-connected panic disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9499-9412 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records (STRs) are on file, as are various post-service medical records and VA examination reports. The Board also notes that the actions requested in the prior remand have been undertaken to the extent possible. A VA examination was conducted and updated VA treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). B. Analysis Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Veteran's panic disorder is currently rated as 30 percent disabling prior to January 2, 2013, and as 50 percent thereafter under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9499-9412. The relevant rating criteria are as follows. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 indicates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. After review of the evidence of record, the Board finds that higher ratings are not warranted for the period prior to January 2, 2013, and for the period from January 2, 2013 to March 9, 2015, but that a rating of 70 percent is warranted from March 9, 2015. During a May 2010 VA mental health consultation, the Veteran reported a recent panic attack, but stated that his symptoms had been fairly well controlled by medication. During attacks he suffered derealization, shortness of breath, hyperventilation, intense fear, cold hands and feet, and numbness and tingling of extremities. He also reported depressive episodes causing a depressed mood and reduced interest in or pleasure from activities. During depressive episodes, he experienced low energy, disturbed sleep, reduced appetite, poor concentration, indecisiveness, guilt, and morbid thoughts. He also reported some nightmares due to in-service trauma. The Veteran denied suicidal or homicidal ideation. He reported good relationships with friends and family. Upon physical examination the Veteran was found to be well-groomed, cooperative and with no abnormal movements. His speech was of normal rate, volume, tone, and rhythm. His mood was euthymic and his affect was slightly restricted. He was mildly anxious and oriented times three. The Veteran's memory was intact with coherent thinking. The Veteran denied hallucinations and was found to have good insight and judgment. The clinician diagnosed panic disorder and major depressive disorder and assigned a GAF of 70. In September 2010, private Dr. A. noted that the Veteran had experienced intermittent panic attacks since 1982 and was treated with individual therapy, first weekly, then monthly, and finally once every six months. Dr. A. noted that the Veteran responded well to Xanax to treat the panic attacks. The Veteran was first afforded a VA psychiatric examination in November 2010. At the time of the examination, the Veteran reported that his memory was not very good especially with numbers and recent or remote events. He denied hallucinations, delusions, suicidal or homicidal thoughts, and obsessive or ritualistic behaviors. He reported brief and unprovoked panic attacks which fluctuated in severity and frequency. He reported anxiety and mild depression which had been well controlled with medication. He denied any impaired impulse control but endorsed intermittent sleep problems. The Veteran reported that he worked in sales and marketing for over 30 years up until three years ago, and currently worked part-time in retail merchandising. He noted one lay-off but no firings. He stated that he had been married since 1968 and generally had a good relationship with his spouse. He reported good relationships with his children and siblings. He socialized with a few friends regularly, was involved in the Shriners organization, and he and his wife often accompanies other couples to parties. The Veteran stated that he enjoyed boating, bird hunting, poker, and spending time with his children and grandchildren. On mental status examination, the Veteran's thought process was found to be unimpaired and he was found to be appropriately groomed and oriented times three. His speech was of normal rate, rhythm, tone and volume. The examiner noted the Veteran's reports to constitute passive suicidal ideation in the late 1970s due to depression and anxiety attacks, but the Veteran denied a history of suicide attempts or assault. The examiner noted PTSD symptoms of difficulty falling or staying asleep, difficulty concentrating, hypervigilance, and depression symptoms of insomnia and poor concentration or indecisiveness. During panic attacks, the Veteran experienced palpitations, sweating, trembling, shortness of breath, derealization, fear of losing control and numbing sensations. The examiner diagnosed panic disorder, major depressive disorder in remission, and stressful military combat exposure, and assigned a GAF score of 70 The examiner reported that the mental disorder signs and symptoms were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. VA mental health treatment records from this period contain positive reports from the Veteran. The Veteran reported working part-time, exercising, going out to eat and having good relationships with his wife, children and grandchildren. The Veteran reported experiencing a few panic attacks with his medicine. During treatment sessions, the Veteran was found to have a cheerful or slightly dysphoric mood and appropriate affect. His memory was found to be intact with coherent thinking. The Veteran consistently denied suicidal ideation. The Board finds that the Veteran's panic disorder prior to January 2, 2013 most closely approximates the currently assigned 30 percent rating. Throughout that period, the Veteran did not demonstrate symptoms associated with higher ratings, nor did he demonstrate other symptoms of similar severity, frequency, and duration. The Veteran reported strong relationships with his friends and family, and engaging in social activities. The Veteran also reported working part-time. The Veteran did not report panic attacks occurring more than once per week, and Dr. A. noted that the panic attacks were well controlled with medication. The Veteran reported similarly. The Veteran also did not show flattened affect, memory issues, impaired judgment or impaired abstract thinking. Moreover, the symptoms noted by the VA and private clinicians, including depressed mood, panic attacks weekly or less often, mild memory loss, and chronic sleep impairment are contemplated by the 30 percent rating criteria. While some of the Veteran's symptoms during this time period are not specifically enumerated in those criteria, the Board finds that the Veteran's overall mental health picture, as evidenced during VA and private treatment and during the VA examination, is in keeping with a 30 percent rating. The Board also notes that, during this period, VA clinicians in May 2010 and November 2010 assigned GAF scores of 70, which is indicative of mild symptomatology. Therefore, the Board finds that a rating in excess of 30 percent for the Veteran's panic disorder is not warranted prior to January 2, 2013. The Board now turns to the period from January 2, 2013. The Veteran underwent another VA psychiatric examination in January 2013. The examiner noted the Veteran's panic disorder and depressive disorder diagnoses. The Veteran reported that he continued to experience panic attacks with symptoms of derealization, shortness of breath, hyperventilation, intense fear, coldness in hands and feet, and numbness in the tingling of extremities. Discussing his depression, he reported lack of motivation, fatigue, reduced interested in preferred activities, poor concentration and focus, and irritability and poor sleep. The Veteran denied symptoms of delusions or hallucinations and none were noted to be present at the time of the examination. The Veteran denied suicidal or homicidal ideation. The Veteran reported that he continued in his marriage and maintained regular contact with his three adult children and grandchildren, with two of his grandchildren staying with the Veteran and his wife. The Veteran reported that he worked part time in merchandising and retail for local pharmacies, and that he had been doing this type of part time work for two years. On mental status examination, the Veteran's thought process and communication skills appeared to be within normal limits. The Veteran was cooperative, maintained good eye contact, and exhibited no inappropriate behavior. The Veteran maintained personal hygiene and activities of daily living and was oriented times three. Memory was intact, although the Veteran reported mild difficulty with attention span and communication, as well as mild dysfunction with short-term memory in routine day-to-day functioning. The examiner noted symptoms of depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner assessed a GAF score of 62 for the panic disorder, stating that the Veteran's symptoms were reflective of occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The examiner noted that the Veteran's depressive symptoms suggested a GAF of 65. In April 2013, the Veteran was interviewed by Dr. D., a private psychologist. The Veteran reported that he currently took Xanax three times per day for panic attacks. He reported repeated memories of a stressful military experience, avoiding activities or situations reminding him of that experience, trouble remembering events associated with the experience, loss of interest in activities, depressed feelings about the future, irritation, hypervigilance, and numbness. He reported that in the last month he felt very upset when he was reminded of a stressful military experience, and experienced physical reactions when reminded. In the last month he had also felt distant or cut off from other people, jumpy, and had trouble falling or staying asleep. He also stated that he was bothered a little by dreams of his stressful military experience and re-experiencing the stressful military experience. The psychologist reported that trauma symptom inventory (TSI) testing showed that the Veteran had elevated dysfunctional sexual behavior, tension reduction behavior, and defensive avoidance scales. On the test, the Veteran also marked items indicating thoughts or feelings about hurting others, suicidal ideation, and endorsed that he had seen people from the spirit world and heard someone talking to him that was not there. The psychologist also noted that the Veteran was unable to relax, felt nervous, had difficulty breathing, and felt scared of dying. The psychologist categorized the Veteran's degree of impairment as occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation normal. The psychologist rated his GAF as a 50. VA mental health treatment records from this period show reports of panic attacks occurring a couple of times per month. The Veteran reported positive interactions with his family, and reported working part-time in November 2014. The Veteran was found to be oriented times three, with various moods and an appropriate affect. The Veteran denied suicidal thoughts or ideation. The Board finds that the Veteran's panic disorder from January 2, 2013 to March 9, 2015 most closely approximates the 50 percent rating. Throughout this period, the Veteran did not demonstrate the symptoms associated with higher ratings, nor did he demonstrate other symptoms of similar severity, frequency, and duration. Although Dr. D. reported the results of the TSI as showing suicidal or homicidal ideation or hallucinations, the Veteran consistently denied suicidal or homicidal ideation on the January 2013 VA examination, and during VA treatment in June 2013, December 2013, and November 2014. The Veteran also denied hallucinations on the January 2013 VA examination. Furthermore, the Veteran also reported good relationships with his family and working part-time throughout this period. Moreover, the symptoms noted by the VA examiner and by Dr. D., including panic attacks weekly or less often, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, are contemplated by the 50 percent rating criteria or by the criteria for lower evaluations. While some of the Veteran's symptoms during this time period are not specifically enumerated in those criteria, the Board finds that the Veteran's overall mental health picture during this period, as evidenced during VA treatment and during the VA and private examinations, is in keeping with a 50 percent rating. The Board also notes that, during this period, the Veteran was assessed with GAF scores of 62 and 65 by the January 2013 VA examiner. Although Dr. D., assessed a GAF score of 50, Dr. D. reported that the Veteran's level of impairment as occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. Therefore, the Board finds that a rating in excess of 50 percent for the Veteran's panic disorder is not warranted prior to March 9, 2015. The Board will now address the period from March 9, 2015. During VA treatment on March 9, 2015, the Veteran reported feeling very depressed in the past several months. He stated that he had not had much motivation, and that he had been sleeping more during the daytime. The Veteran reported that he slept late daily and had not been exercising. The Veteran was once again examined in May 2015. The examiner noted diagnoses of panic disorder and PTSD. The Veteran described his current emotional health as "fair," and endorsed frequent moods including depression, anxiety, stress, and excessive anger. The Veteran described experiencing sad feelings, sleep problems, negative thoughts, frequent discouragement, restlessness, irritability, increased muscle tension, concentration problems, hypervigilance, difficulty getting close to people, and difficulty leaving the house. He reported that he has had thoughts of suicide in the past but has never attempted suicide and denied any serious consideration of suicide at the time of the examination. He denied experiencing any hallucinations or delusions. The Veteran stated that his relationship with his siblings was good and that he had not maintained full time work since 2006. On mental status examination the examiner noted that the Veteran was well groomed and dressed. His behavior was appropriate and he maintained good eye contact during the exam. His energy level was restless. His mood was anxious and his intensity was moderate with congruent affect to mood. His communication, speech, and concentration were within normal limits. There was no history of delusions or hallucinations. Thought processes were appropriate and judgment was not impaired. No suicidal or ideation was reported. The examiner reported the symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and difficulty adapting to stressful circumstances, including work or a worklike setting. The examiner classified the Veteran's symptoms as causing occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran did not appear to pose any threat of danger or injury to himself or others. The evidence of record, including clinical records noting the Veteran's physical and social isolation and suicidal thoughts, reflects that from March 9, 2015, the Veteran's panic disorder has been manifested by symptoms including difficulty in adapting to stressful circumstances and suicidal ideation. Given the Veteran's reports of isolation and depression, and, noting that the Veteran did not report continuing with his part-time work on the May 2015 VA examination, the Board finds that his symptoms cause occupational and social impairment in the areas of work, family relations, and mood. Therefore, after resolving all doubt in the Veteran's favor, the Board finds that from March 9, 2015 the Veteran's panic disorder most closely approximates the 70 percent rating. However, the evidence of record does not support a rating of 100 percent - - the only higher disability evaluation available. The May 2015 examiner did not note that the Veteran's symptoms cause total occupational and social impairment. Moreover, the record does not reflect that the Veteran has at any point demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. Persistent delusions or hallucinations have not been shown, nor has the Veteran been shown to have gross impairment in thought processes or communication, inappropriate behavior, an inability to perform the activities of daily living, or any of the other markers of total occupational and social impairment due to his service-connected panic disorder. With respect to each time period, the Board has considered the Veteran's assertions as to his symptomatology and the severity of his condition, but, to the extent he believes he is entitled to higher ratings during those time periods, concludes that the findings during medical evaluations are more probative than the Veteran's lay assertions to that effect. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria for psychiatric disabilities reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. Indeed, the rating criteria specifically contemplate occupational and social impairment. The Board notes that it has considered all psychiatric symptomology in determining his functional impairment, not just the symptoms listed in the rating criteria. See Mauerhan, 16 Vet. App. 436. In short, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral of his increased rating claim for extraschedular consideration is not warranted. In sum, the Board finds that, for the service-connected panic disorder, a rating no higher than 30 percent is warranted prior to January 2, 2013, a rating no higher than 50 percent is warranted prior to March 9, 2015, and that a rating of 70 percent is warranted from March 9, 2015. ORDER For the period prior to January 2, 2013, a rating in excess of 30 percent for service-connected panic disorder with depression and PTSD is denied. For the period from January 2, 2013 to March 9, 2015, a rating in excess of 50 percent for service-connected panic disorder with depression and PTSD is denied. From March 9, 2015, a rating of 70 percent, but no higher, for service-connected panic disorder with depression and PTSD is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that the evidence in this case raises a claim for a TDIU. That evidence includes his report to the May 2015 VA examiner that he had not maintained full-time work since 2006. While the Veteran had reported through November 2014 that he had been working part-time in retail merchandising, the Veteran has not completed a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), nor does the record otherwise contain information sufficient to determine whether such employment was substantially gainful. Therefore, the Board finds that the record does not contain sufficient evidence on the issue of unemployability, and thus remand is necessary for further development of the TDIU claim. On remand, the Veteran should be provided with Veterans Claims Assistance Act (VCAA) notice advising him of the requirements for substantiating a claim for a TDIU. The Veteran should also be asked to complete a VA Form 21-8940, to provide information concerning his earnings since 2010, and should submit proof of his income, such as tax returns, if he contends he earned less than $12,000 per year during the years 2010, 2011, 2012, 2013, 2014, 2015, and 2016. The Veteran should also be afforded an examination by a psychiatrist to determine the functional impairments caused by his service-connected disabilities. Updated VA and private treatment records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (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. Send the appropriate Veterans Claims Assistance Act (VCAA) notice advising the Veteran of the requirements for substantiating TDIU, and enclose and ask the Veteran to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) to provide relevant information concerning his work and educational history. The Veteran should also be asked to submit copies of proof of income, such as income tax returns for 2010 to the present, if he alleges he has earned less than $12,000 per year since 2010. 2. Ask the Veteran to identify any private medical providers who have treated him for his heart since September 2011, and for his psychiatric conditions since April 2013. After securing any necessary releases, the AOJ should request any relevant records. Additionally, obtain VA treatment records dating from March 2015 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. Then, schedule the Veteran for an examination by a psychiatrist. The claims file must be made available to and be reviewed by the examiner, and all necessary tests should be conducted. The psychiatrist is asked to evaluate the extent to which the Veteran's service-connected disabilities (panic disorder with depression and PTSD, ischemic heart disease, and tinnitus), separately, or in combination, have impaired his ability to meet the demands of a job, either sedentary or physical, at any time during the course of the appeal. The psychiatrist's opinions should include an evaluation of the limitations and restrictions imposed by his service-connected impairments on such routine work activities as interacting with coworkers; sitting, standing, and walking; plus lifting, carrying, pushing, and pulling. All findings and conclusions should be set forth in a legible report. 4. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 2014). ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs