Citation Nr: 1802661 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-32 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for anxiety disorder. 2. Entitlement to a total rating due to unemployability caused by service connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). An October 2013 rating decision increased the rating to 30 percent, effective October 16, 2013. Despite the assignment of an increased rating, the full benefits sought have not been granted and the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In December 2016, the Board denied entitlement to a rating in excess of 30 percent for anxiety disability and entitlement to TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In November 2017, the Court granted a Joint Motion for Remand, vacated the December 2016 decision, and remanded the case to the Board. In July 2014 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 2689 (1998). The Veteran contends that he is entitled to a rating in excess of 30 percent for anxiety disorder, as the claimed condition has grown increasingly worse. More specifically, during the April 2011 hearing with the undersigned Veterans Law Judge, the Veteran testified that the 30 percent rating for service connected anxiety did not adequately compensate the severity of that disability. The Veteran stated that it caused him memory problems, impaired sleep, and nightmares and that it limited his ability to socialize. In December 2016 the Board determined that the increase in symptoms the Veteran was experiencing was associated with nonservice connected dementia and not service-connected anxiety disorder. In an October 2017 medical record, D.L.J., Ph.D. determined that it was impossible to distinguish the symptoms associated with the Veteran's service connected anxiety disability and non service connected dementia. The rationale provided was that the symptoms between the two disabilities often overlap. The Board notes that each symptom claimed by the Veteran was not discussed in regard to whether or not it was or was not distinguishable. Furthermore, the Board highlights that in October 2013 VA examination, the examiner opined that it was possible to distinguish the effects of the Veteran's service connected anxiety disorder from non service connected dementia. In the November 2017 Joint Motion for Remand, both parties acknowledged that there was a need to adequately distinguish the Veteran's symptoms associated with service-connected anxiety disorder from those associated with nonservice-connected dementia. The parties agreed that the Board should distinguish the effects of each disability and where not possible, attribute it to the service connected anxiety disability. As a result, a VA examination is necessary. The TDIU claim is inextricably intertwined with the claim for increased rating. As a result, the claim for TDIU cannot be decided without first addressing the Veteran's increased rating claim. Clinical documentation dated after October 2017 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment for anxiety disorder since October 2017, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record. If any identified records are not obtained, notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records not already of record pertaining to treatment of the Veteran, to include records after October 2017. 3. Schedule the Veteran for mental disorders examination. The examiner must review the claims file and must note that review in the report. All indicated tests should be conducted. After a review of the evidence, the examiner is asked to distinguish symptoms that are the result of service-connected anxiety disorder and symptoms that are the result of nonservice-connected dementia, with specific discussion of the Veteran's described symptoms. If the examiner is unable to distinguish which symptoms are the results of which disability, the examiner should so state, and explain why. The examiner is to address the October 2017 medical opinion of D.L.J., Ph. D. A rationale for all opinions should be provided. The examiner should describe all symptoms associated with service-connected anxiety disorder, and should opine as to the levels of occupational and social impairment caused by those symptoms. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts 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).