Citation Nr: 1757032 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-19 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 50 percent for anxiety disorder not otherwise specified (NOS) with alcohol abuse. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD M.D., Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to June 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a January 2014 rating decision, the RO increased the Veteran's anxiety disorder to 50 percent effective March 18, 2010. In December 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his anxiety disorder with alcohol abuse deserves an evaluation higher than its currently assigned evaluation of 50 percent. For the following reasons, the Board finds that a remand is warranted for further evidentiary development. Buddy statement from B.J.M., the Veteran's daughter who is also a nurse, reported that the Veteran will be happy one minute and then very angry or upset the next, without any cause. B.J.M. stated that the Veteran gets very uncomfortable around people and oftentimes goes out of the building or goes into the basement to be alone, including during family gatherings. B.J.M. also stated that the Veteran loses focus a lot and becomes very forgetful. Buddy statement from the Veteran's wife, E.D.N. stated that the Veteran does not like "dealing with people." She specified that the Veteran could not handle being around people when he would ride the bus, so she would have to drive him places. E.D.N. also expressed that the Veteran does not sleep well and has nightmares. The Veteran was afforded a VA examination in April 2010. The Veteran reported symptoms of nightmares, difficulty falling and staying asleep, irritability or outbursts of anger, feeling of detachment and hypervigilance. The Veteran reported activities and leisure pursuits such as working, and fishing, and swimming with his grandson. The Veteran's mental examination revealed that the Veteran's general appearance was clean and his attitude towards the examiner was friendly and relaxed. The Veteran's affect was normal and his mood was good. The Veteran denied problems with attention or focus. The Veteran was intact to person and place but not time. The Veteran had no delusion, persistent hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal ideation or suicidal ideation. Regarding the Veteran's judgment, the Veteran understands the outcome of his behavior and understands that he has a problem. The Veteran's impulse control was poor and he has had episodes of violence. The Veteran's remote, recent and immediate memories were normal. The examiner diagnosed the Veteran with anxiety disorder and evaluated the Veteran with a GAF score of 52. The Veteran was afforded another VA examination in March 2011. The Veteran reported that his hobbies include spending time with his grandchildren. The Veteran also reported that since he began taking medication, his mood changes have greatly improved his relationship with his wife. The Veteran reported that he has fewer friends now in comparison to one year ago due to the fact that he "does not relate to a lot of people." The Veteran denied any violent incidents in the past year. The Veteran denied any suicide attempts in the past year. The Veteran reported drinking alcohol 6 days a week for the past 5 to 6 months. The Veteran stated that he knows that he has a problem with alcohol but he drinks to feel "numb" and treat his mental health condition. The Veteran reported being anxious and stressed that increases in severity "as the day goes on." He endorsed concentration problems and hypervigilance. He reported experiencing nightmares about Vietnam. The Veteran stated that his anger and irritability has improved greatly with his medication. The Veteran's mental examination revealed that the Veteran's general appearance was clean, neatly groomed, and appropriately dressed. The Veteran's attitude towards the examiner was cooperative and friendly. His affect was appropriate and his mood was anxious. The Veteran was intact to person, place, and time. His thought process and content was unremarkable. The Veteran had no delusion, persistent hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal ideation or suicidal ideation. Regarding the Veteran's judgment, the Veteran understands the outcome of his behavior. The Veteran has sleep impairment. His impulse control was good and there are no episodes of violence. The Veteran has the ability to maintain minimum personal hygiene. The examiner evaluated the Veteran with a GAF score of 55. The claims file contains a private mental status examination dated January 2012. The examiner noted that no medical records were available to review. The examiner reported that during the interview, the Veteran was pleasant but a little vague and tentative. The Veteran reported avoidance of thoughts, feelings, or conversations associated with the events or activities that took place in Vietnam. The Veteran reported that he avoids parades, military things, and describes himself as anti-social. The Veteran reported arousal problems in the form of flat line emotions, "numb," and feelings of derealization and getting off into a spacey "daze." He expressed that he has sleep problems and anger difficulties. The Veteran reported startle reactions and hypervigilance at all times. The Veteran's mental examination revealed that the Veteran's manner was alert but vague and distractible. The Veteran's attitude towards the examiner was cooperative but uneasy. His attention span was short and his affect was within normal limits. The Veteran reported that he feels depressed all the time and he started to feel like killing himself. The Veteran reported that he has made attempts to kill himself but does not feel that way now "because of the boys." The Veteran admits to his anger problems but denied and plans to harm anyone. The Veteran reported obsessive thoughts and paranoid attitude towards others. The examiner noted that the Veteran's judgment was fair and insight was limited. The examiner noted that the Veteran was well oriented as to time, place, and person. The Veteran's memory was spotty and inexact for recent, intermediate and remote events. The examiner described the Veteran as touchy, volatile, driven, and compulsive. The examiner evaluated the Veteran with a GAF score of 45. The Veteran was afforded a VA examination in November 2013. The examiner opined that the Veteran has an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, and self-care and conversation. The examiner noted that the Veteran has difficulty falling or staying asleep, irritability or outbursts of anger, and hypervigilance. The examiner evaluated the Veteran with a GAF score of 60. The Board finds that an additional examination is necessary. The Veteran's most recent mental examination was in November 2013. During the December 2016 hearing, the Veteran reported that his symptoms have worsened pretty drastically since the last examination. The Veteran is having a lot of difficulty with depression, anxiety, lack of motivation, and anger. The Veteran testified to going a few days without showering. See Board hearing transcript at 4. The Veteran also testified to not having friends. Id at 8. Where the evidence of record indicates that the disability has become worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olson v. Principi, 3 Vet. App. 489, 482 (1992) ("where the veteran claims a disability has worsened than when originally rated, and the evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination."). Therefore, the evidence of record reveals that another VA examination is necessary to determine the current severity and nature of the Veteran's service-connected anxiety disorder not otherwise specified (NOS) with alcohol abuse. Regarding the TDIU claim, the Board finds that the AOJ's potential evaluation of an increased rating of the Veteran's anxiety disorder will impact any decision respecting an award of TDIU; a decision as to TDIU is therefore premature at this point and is remanded as intertwined with the issues being remanded below. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board also finds that the AOJ should seek additional records, to include SSA records. The record currently contains a favorable SSA decision but not the underlying records on which this decision was based. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of any SSA decision awarding disability benefits for the Veteran, copies of all treatment (medical) records upon which any such SSA disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by SSA. 2. Ask the Veteran to identify any VA or private treatment that he may have had for his anxiety disorder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. 3. After completing directives #1-2, schedule the Veteran for a VA examination to determine the current severity of his anxiety disorder and its effect on his social and occupational functioning. The examiner should discuss the impact of the psychiatric disability on the Veteran's ability to maintain substantially gainful employment. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All opinions must be accompanied by a clear rationale. 4. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim for increased evaluation of his anxiety disorder as well as entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).