Citation Nr: 21004838 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-27 881A DATE: January 28, 2021 REMANDED Entitlement to an initial evaluation higher than 10 percent disabling for an anxiety disorder, not otherwise specified, prior to September 15, 2010, and to an evaluation higher than 30 percent disabling from September 15, 2010, forward, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had active service from September 2007 to October 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and February 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2009, the RO awarded service connection for an anxiety disorder and assigned an initial 10 percent rating, effective from October 8, 2008. New and material evidence, consisting of VA treatment records, was received within one year of the April 2009 rating decision. The RO readjudicated the Veteran’s claim in a February 2011 rating decision, and the Veteran perfected an appeal. The Veteran attended a hearing in March 2018. A transcript is of record. These issues were previously before the Board in May 2018 when they were remanded for further development. 1. Entitlement to an initial evaluation higher than 10 percent disabling for an anxiety disorder, not otherwise specified, prior to September 15, 2010, and to an evaluation higher than 30 percent disabling from September 15, 2010, forward, is remanded. The Board notes treatment records obtained on remand show the Veteran received treatment from two private providers. Specifically, a January 2016 Psychiatry Note documents the Veteran, at that time, was seeking treatment at Creative Counseling and had previously sought treatment at the Gestalt Center. These records do not appear to be part of the Veteran’s claims file. As a result, a remand is needed to obtain the records. Furthermore, while on remand in September 2019, the Veteran received a VA examination for his service-connected anxiety disorder. In its prior remand, the Board asked the examiner to elicit from the Veteran his complete educational, vocational, and employment history and to note his complaints regarding the impact of his service-connected anxiety disorder on his employment. The Board also asked the examiner to identify all limitations imposed on the Veteran as a consequence of his service-connected anxiety disorder, particularly with respect to his ability to obtain and maintain employment. While the examination report discusses the Veteran’s employment history, it does not reflect all the information requested by the Board’s May 2018 remand. Particularly, the report does not identify all limitations imposed on the Veteran as a consequence of his service-connected anxiety disorder, particularly with respect on his ability to obtain and maintain employment. The report also does not discuss the Veteran’s vocational history or any success with regard to the program, especially given that the claims file reflects he was enrolled in vocational rehabilitation services with VA. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, a remand is required to comply with the Board’s May 2018 remand orders. Furthermore, a VA psychologist in August 2020 found the Veteran’s current psychological distress appears to be rooted in traumatic events that occurred during his military career, and also found there may be impairment in his thinking due to significant poor sleep and significant anxiety, which have been found by VA examiners to consist of symptoms associated with his anxiety disorder. It was also noted that he suffers from chronic suicidal thinking. The psychologist concluded that “the Veteran’s behavior, beliefs and anger responses were better explained by responses to trauma and an ‘Enduring Personality Change After a Catastrophic Experience’. This impression is congruent with domains affected by trauma including affective instability, interpersonal difficulties, distrusting others, and difficulty expressing/identifying emotions. As such, [the Veteran’s] symptomology is better explained by trauma-related responses, rather than a personality-related disorder.” The diagnostic impressions included enduring personality change after catastrophic experience and chronic posttraumatic stress disorder. In light of this finding, a remand is further warranted for an examination to address the conflicting evidence and capture the current severity of the Veteran’s service-connected psychiatric disorder. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. Finally, because resolution of the TDIU claim is intertwined with the outcome of the claim being remanded, the Board will defer consideration of this issue. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (holding that two issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on the resolution of the second issue). The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records from August 2020 forward. 2. After obtaining any required authorization from the Veteran, obtain the Veteran’s private treatment records from Creative Counseling the Gestalt Center in addition to any other private treatment providers identified by the Veteran. All actions to obtain these records should be documented in the claims file. The RO must make two attempts to obtain the private treatment records, or make a finding that further requests would be futile. If no records are obtained, the RO must provide the Veteran and his representative proper notice and an opportunity to respond. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity of his anxiety disorder. Preferably, the appropriate Disability Benefits Questionnaire (DBQ) should be used for this purpose. The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected anxiety disorder on his employment. The examiner should explain and reconcile any conflicting evidence concerning the Veteran’s diagnosed psychiatric disorder(s). Specifically, the Veteran is service connected for an anxiety disorder, not otherwise specified. However, a VA psychological assessment dated August 24, 2020 notes that “the Veteran’s behavior, beliefs and anger responses were better explained by responses to trauma and an ‘Enduring Personality Change After a Catastrophic Experience’. This impression is congruent with domains affected by trauma including affective instability, interpersonal difficulties, distrusting others, and difficulty expressing/identifying emotions. As such, [the Veteran’s] symptomology is better explained by trauma-related responses, rather than a personality-related disorder.” The diagnostic impressions included enduring personality change after catastrophic experience and chronic posttraumatic stress disorder. The examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected psychiatric disorder, particularly with respect to his ability to obtain and maintain employment. If more than one diagnosis is found, the examiner is also asked to specifically comment on whether it is possible to differentiate the symptoms of the Veteran’s service-connected disorder from any other diagnosed psychiatric disorders. If it is possible to differentiate the symptoms, then the symptoms should be attributed to each diagnosis. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.