Citation Nr: 21066093 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-27 915 DATE: October 28, 2021 REMANDED Entitlement to an increased rating greater than 70 percent for anxiety disorder with insomnia is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2000 to August 2003. He appeals a June 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to a rating greater than 30 percent for a service-connected anxiety disorder. Originally, the Veteran requested a hearing before the Board of Veterans' Appeals (Board); however, the Veteran withdrew his hearing request in a September 2019 letter and the hearing request was withdrawn. See April 2017 VA Form 9; See 38 C.F.R. § 20.704(e). In February 2020, the Board found the Veteran's psychiatric symptoms met the criteria for a 70 percent rating, but no higher, during the entire appeal period. In December 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated, in part, and remanded this issue from the February 2020 Board decision. The claim is now back before the Board. As a preliminary note, the Veteran's representative filed a notice to withdraw representation in April 2021, after certification to the Board. However, a representative's right to withdraw services after an appeal has been certified to the Board requires a showing of good cause with a written motion to withdraw fulfilling the requirements in 38 C.F.R. § 20.6. The Board, in response to the representative, provided a September 2021 letter outlining these steps and held the appeal in abeyance for thirty days. Since then, the Board has not received any submission by the Veteran or his representative. As such, the Board continues to recognize Harry J. Binder as the Veteran's representative. Additionally, the Veteran recently argued he is entitled to an effective date earlier than January 22, 2013 for the increased rating of 70 percent for his service-connected anxiety disorder. See March 2021 Veteran letter. The Board has no jurisdiction over this request as the December 2020 JMPR only instructed the Board to consider "entitlement to a rating in excess of 70 percent for an anxiety disorder with insomnia from January 22, 2013." After review of the record and in consideration of the Veteran's appeal for a rating greater than 70 percent, a remand is required. Pertinent treatment records needed to properly adjudicate the Veteran's claim are not of record. The Veteran informed the January 2017 VA examiner that he received treatment from Dr. A.T. at Robert Wood Johnson Medical School (RWJMS). Medical treatment records furnished by the Social Security Administration (SSA) included psychiatric treatment records from RWJMS that were not previously in the record; however, these SSA-provided records are not chronological and the latest record appears to be from November 2016. VA's duty to assist includes assisting the claimant in the procurement of relevant medical records. See 38 C.F.R. § 3.159(c). Additionally, the last VA treatment records on file are from January 2017. As all pertinent psychiatric records from RWJMS and VA are not on file, a remand is required. Additionally, as the Board is already remanding for medical records, a VA examination should be conducted to assess the current nature and severity of the Veteran's anxiety disorder as the last VA examination was conducted in January 2017 and the July 2017 Dr. A.T. and September 2017 Dr. E.T. assessments provided retrospective opinions on the Veteran's symptoms prior to June 2015. Moreover, given the JMPR's focus on the Veteran's alleged hallucinations, examination is needed to better identify the nature and extent of these symptoms. The matter is REMANDED for the following action: 1. Obtain all outstanding and updated relevant VA and/or private psychiatric treatment records that have not already been associated with the claims file, including, but not necessarily limited to, the Veteran's complete psychiatric records from Robert Wood Johnson Medical School. If any identified records are not obtainable, or none exist, the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected anxiety disorder with insomnia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his anxiety disorder alone. (Continued on the next page) 3. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, Associate Counsel 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.