Citation Nr: 1648552	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  13-80 820	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to an initial evaluation in excess of 50 percent for anxiety disorder, not otherwise specified (NOS).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran, S.V., and M.W.


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran had active duty from July 1989 to November 1989, from September 1990 to May 1991, and from June 1991 to July 2011.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, however, the appeal was certified from St. Paul, Minnesota.  

During the pendency of the appeal, a February 2014 rating decision increased the initial rating assigned for anxiety disorder, NOS to 50 percent, effective from August 1, 2011, the date of the grant of service connection.  Because the higher rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities (rating schedule), the Veteran's claim remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal).  

The Veteran and two witnesses testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2014.  A transcript of that hearing is of record.  This matter has been previously remanded by the Board in May 2015 and October 2015 for additional development.  The matter has returned to the Board for appellate consideration.  

The Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a total rating based on individual unemployability due to a service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Veteran has indicated that his service-connected anxiety disorder, NOS impairs his sleep, causes distressing dreams, avoidance behavior, difficulty adapting to stress in work settings, hypervigilance with an exaggerated startle response, difficulty with concentration, and irritability.  See, e.g., Appellate Brief received October 2016.  However, the Veteran has not argued, and the record does not otherwise reflect, that the disability renders him unable to secure or follow a substantially gainful occupation.  The Board concludes that a claim for a TDIU has not been raised.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board finds that the issue of entitlement to an initial evaluation in excess of 50 percent for anxiety disorder, NOS must be remanded for further development before a decision may be made on the merits.

The examiner's report from the Veteran's February 2016 VA psychiatric examination reflects that the Veteran reported mental health treatment outside of the VA at a "Catholic hospital in St. Paul."  The Veteran stated that he had a mental health examination at that facility in "the latter part of October or early November" of 2015.  The record does not reflect that any efforts have been made to obtain records from a treatment facility of that specific nature and for the time frame described by the Veteran during his February 2016 VA psychiatric examination.  The appeal must therefore be remanded so that appropriate steps may be taken to obtain those records.  See 38 C.F.R. § 3.159 (c)(1) (2015).

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with a VA Form 21-4142, Authorization to Disclose Information to VA, to identify all treatment from private healthcare providers relevant to the disability at issue since August 1, 2011.  The Veteran should be informed that VA is particularly interested in records from "a Catholic hospital in St. Paul" where the Veteran reportedly received a mental health examination sometime between October 2015 and November 2015, as referenced by the Veteran during his February 2016 VA psychiatric examination.  All attempts to obtain any records identified must be documented in the record.  The Veteran must be notified of any inability to obtain the requested documents.  Allow for an appropriate amount of time for response and complete any additional development resulting from the Veteran's response.  

2.  After completion of the above, readjudicate the issue on appeal.  If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case as to the issue on appeal.  The supplemental statement of the case must reflect consideration of all pertinent evidence of record, including that submitted by the Veteran following issuance of the statement of the case.  Thereafter, the case should be returned to the Board for appellate review.  

The appellant has the right to submit additional evidence and argument on the matter 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 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).



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