Citation Nr: 1756574 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-25 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent, prior to December 10, 2008, for general anxiety disorder (GAD), and in excess of 50 percent thereafter. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU), due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in March 2015 and in September 2016. At those times, the Board remanded the case for additional development. Unfortunately, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The development actions requested in the Board's March 2015 and September 2016 remands were not fully completed. A remand by the Board confers on claimants, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, in the present case, the additional development specified in the Board's prior remand must be conducted prior to adjudication. As noted in the September 2016 Board remand, the March 2015 Board remand directives ordered the RO to schedule the Veteran for a VA psychiatric examination under the DSM-IV, to determine the current, nature, extent, and severity of his service-connected GAD. The examiner was specifically requested to assign a numerical code under the Global Assessment of Functioning (GAF) scale. The examiner was further requested to address the impact of the Veteran's service-connected GAD on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. The September 2016 Board remand acknowledged that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015) (emphasis added). Nevertheless, the Board noted that the AOJ certified the Veteran's appeal to the Board in June 2011 and therefore, this claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, the Board reiterates that due process requires that the Veteran's claims must also be considered using the DSM-IV criteria. The September 2016 Board remanded the case since the Veteran was evaluated under DSM-5, and not the requested DSM-IV, criteria in the September 2015 and April 2016 VA examinations. The Board noted, in part, that the VA examiners never assigned the Veteran a GAF score. Pursuant to the September 2016 Board remand, the Veteran was provided another VA examination in June 2017. However, upon review of the examination, the Board notes that the Veteran was again evaluated under the DSM-5, and not the requested DSM-IV, criteria. The VA examiner also, again, failed to assign the Veteran a GAF score. As such, a new VA examination is necessary to evaluate the Veteran's GAD under the requested DMS-IV criteria. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that, as any decision with respect to the increased rating claim for GAD may affect the Veteran's claim for a TDIU, this claim is inextricably intertwined with the claim for service connection. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination, under the DSM-IV, to determine the current nature, extent, and severity of his service-connected GAD. The electronic claims folder must be made accessible to the examiner for review. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing, and to prepare a report which fully discusses the Veteran's symptomatology and test findings as related to the diagnostic criteria for GAD. The examiner is specifically requested to assign a numerical code under the GAF Scale. The examiner should also indicate the degree of social and occupational impairment due to GAD. The examiner should determine the functional effects of the Veteran's service-connected psychiatric disability on his ability to obtain and maintain employment consistent with his education and occupational experience. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to the impact of the Veteran's service-connected psychiatric disability on his ability to secure and follow substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. A complete rationale for any opinion must be provided. 2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).