Citation Nr: 21026381
Decision Date: 04/30/21	Archive Date: 04/30/21

DOCKET NO. 16-26 303
DATE: April 30, 2021

REMANDED

Entitlement to a disability rating in excess of 30 percent for anxiety disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1967 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2018, the Board remanded the appeal for an initial rating in excess of 10 percent for an anxiety disorder.  The remand indicated that the issue of whether new and material evidence had been received to reopen a previously denied claim for posttraumatic stress disorder (PTSD) had been raised by the record, but not adjudicated by the RO.

In April 2019, following a psychiatric examination, the RO granted an increased rating of 30 percent effective June 3, 2015.  In July 2019, the Board again found the RO had not adjudicated the claim of service connection for PTSD and remanded the claim.  

Unfortunately, to date the RO has still not adjudicated the matter of whether new and material evidence has been submitted to reopen a previously denied claim for PTSD.  In an August 2020 supplemental statement of the case (SSOC), the RO indicated it had reviewed the evidence, but no change was warranted for the prior determination.  

Where the remand orders of the Board are not complied with, the Board errs as a matter of low when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998). Moreover, as an appropriate rating for the service-connected anxiety disorder may be impacted by the decision regarding service connection for PTSD, the two issues are inextricably intertwined.  See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001).

Finally, the Board observes that since the August 2020 SSOC, relevant VA medical records and lay evidence were added to the file. Review of the file also appears reflects that a new psychiatric examination of the Veteran was requested as recently as January 2021.  In short, this appeal is not ripe for appellate action.

The matters are REMANDED for the following action:

1. Adjudicate in the first instance the issue (with which the present appeal is inextricably intertwined) of whether new and material evidence has been submitted to reopen a previously denied claim for PTSD.

2. Readjudicate the Veteran’s higher initial rating claim for anxiety disorder.

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.A. Infante, 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.