Citation Nr: 1807290 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-26 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent prior to January 7, 2013, and in excess of 50 percent from January 7, 2013, for anxiety disorder, not otherwise specified (NOS), with features of posttraumatic stress disorder (PTSD) and mild recurrent major depressive disorder (MDD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran completed active duty naval service from September 1966 to May 1968 and service in the United States Navy Reserve. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board remanded this case in April 2014 and February 2015 for additional development and the appeal has now been returned to the board for additional claim development. The Veteran testified before the undersigned Veterans Law Judge at a May 2013 Travel Board hearing. A transcript is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in a January 2016 brief submitted by the Veteran's representative, in August 2015 correspondence the Veteran explained that his psychiatric condition had worsened and referenced an August 2014 hospitalization due to delirium at Morton Hospital. As records of this hospitalization are not associated with the claims file, this claim must be remanded so that the Veteran can be provided an opportunity to submit the outstanding private treatment records or submit a release form authorizing VA to procure them on his behalf. Additionally, the Board notes that the February 2015 Board remand decision requested an addendum opinion addressing whether the Veteran's functional limitations are attributable solely to his service-connected anxiety disorder or his various non-service connected orthopedic and other conditions. The Board directed the examiner to address the Veteran's May 2013 Board hearing testimony regarding his functional limitations, as well as his other lay statements of record. The Veteran's April 2014 VA treatment records note a medical history of a variety of conditions including lumbar radiculopathy, low back pain, obstructive sleep apnea, and degenerative joint disease. A review of the records reveals that an addendum opinion was procured in April 2015, but that the examiner simply restated the opinion previously provided in July 2014. Accordingly, on remand a medical opinion that is responsive to the Veteran's appeal should be procured. Moreover, the Board notes that as the Veteran's most recent VA examination was provided in July 2014, and there is some evidence that the Veteran's service-connected anxiety condition may have worsened, a more contemporaneous VA examination should be procured. Finally, as the Veteran is currently in receipt of VA treatment for his service-connected anxiety condition and the most recent VA treatment records are only current through May 2014, on remand any outstanding VA treatment records relevant to the Veteran's claim should be procured. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records relevant to the claims being remanded and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Contact the Veteran and provide him the opportunity to submit any outstanding private treatment records to include records from Morton Hospital. Additionally, provide the Veteran with a release form authorizing VA to procure any outstanding private medical records pertinent to his psychiatric disability on his behalf. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected psychiatric disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Taking into account the evidence in the claims file and the Veteran's lay statements, the examiner must determine the current severity of the Veteran's service-connected psychiatric disability alone, and its impact on his daily activities and capacity for work without regard to nonservice-connected mental or physical disability. Additionally, with regard to the Veteran's capacity to work, the examiner should comment on the Veteran's May 2013 Board hearing testimony with regard to the severity of his functional limitations to include memory and concentration issues. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 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). S. L. Kennedy 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).