BVA9503347 DOCKET NO. 90-30 732 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD) with headaches, to include a total rating based on unemployability under the provisions of 38 C.F.R. § 4.16(c). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and former spouse ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The Board of Veterans' Appeals (Board) originally entered a decision in this case on June 5, 1991. Reconsideration of that decision has been ordered by the authority granted to the Chairman in 38 U.S.C.A. § 7103 (West 1991) and the case is now before an expanded reconsideration panel of the Board. The decision of the reconsideration panel replaces the decision of June 1991 and is the final decision of the Board. For reasons which will be set forth below, the Board construes the issue as stated on the preceding page. The veteran had active military service from June 1948 to December 1951. This matter originally came before the Board on appeal from a November 1988 rating decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO) which granted the veteran a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.29, effective September 15, 1988, and thereafter reinstated the 50 percent schedular disability rating for his service-connected post-traumatic stress disorder, effective November 1, 1988. A notice of disagreement with the continuance of the 50 percent schedular evaluation followed in January 1989. The statement of the case was issued in April 1989. Following the receipt of additional medical records, the RO, by rating decisions in May and June 1989, reduced the schedular evaluation of the veteran's service-connected post- traumatic stress disorder from 50 percent to 30 percent disabling effective September 1, 1989, pursuant to the provisions of 38 C.F.R. § 3.105(e) (1993). (A temporary total rating under the provisions of 38 C.F.R. § 4.29 from February 6, 1989 through April 1989 was also assigned.) The veteran's substantive appeal was received in May 1989. In October 1989, the veteran and his spouse (from whom he is now divorced) appeared and offered testimony at a personal hearing on appeal before a hearing officer at the RO. The appeal was received by the Board in August 1990 following the development of additional evidentiary data and the issuance of multiple supplemental statements of the case to the veteran and his representative as appropriate to this development. A Board decision on the issue as noted above was rendered in June 1991. That decision granted the veteran an increased 70 percent rating for his service-connected post-traumatic stress disorder with headaches. The RO took action to effectuate this grant. Thereafter, in October 1991, the veteran submitted a claim to the RO for increased compensation based on individual unemployability. This claim, as well as a further claim for increased evaluation for his service-connected post-traumatic stress disorder beyond the 70 percent then assigned, was denied by the RO in a rating decision dated in November 1991. The veteran disagreed with this determination and both issues were then developed for appellate review. In informal hearing presentations, dated in May and October 1993, in connection with the veteran's appeal, the appellant's representative, the Paralyzed Veterans of America, Inc., submitted arguments which have been construed by the Board as a motion for reconsideration of its June 1991 decision. Specifically it was contended that the Board, after granting a 70 percent rating, should have addressed the issue of whether the veteran was entitled to a total (100 percent) rating, based on unemployability under 38 C.F.R. § 4.16(c). REMAND In this case, the appellant contends that the evidence on file prior to and subsequent to the Board's June 1991 decision, clearly establishes that symptoms of the veteran's service- connected post-traumatic stress disorder meet and exceed the criteria for the 70 percent disability evaluation under Diagnostic Code 9411 of VA's Schedule for Rating Disabilities. It is specifically argued on reconsideration that the veteran exhibits total social and industrial impairment and such impairment is evidenced by his award of Social Security Administration disability benefits and his repeated admissions to VA medical facilities in recent years for post-traumatic stress disorder-related treatment. Thus it is contended, in effect, that a 100 percent rating is warranted either on the basis of the schedular criteria or on the basis of unemployability under 38 C.F.R. § 4.16(c). Our preliminary review of the clinical data reveals that since early 1989, the veteran has been hospitalized on several occasions primarily for his service-connected post-traumatic stress disorder as well as for other conditions affecting his mentation. The severity of his disorders with respect to his employability has been variously assessed by VA clinicians and examiners during this period and various diagnoses, in addition to PTSD, have also been recorded to include dysthymic disorder, adjustment disorder with mixed disturbances of conduct and emotion, a history of bipolar disorder, chronic recurrent depression, and mixed personality disorder. His credibility has been questioned by a number of clinicians. For example, during VA hospitalization from August to September 1990 the veteran was described as having the reputation of being a "frequent exaggerator and distorter of symptoms." Some of his behavior during that hospitalization was reported to be an attempt to manipulate. On his most recent period of VA hospitalization, beginning in late August 1993, post-traumatic stress disorder was diagnosed only by history. It was recorded, on this occasion, that his severe difficulty with sleeping and irritability appeared to be due to his high consumption of caffeine and tobacco. The veteran was reported not to be on any psychotropic medication and it was specifically recorded that he was not noted to be depressed. At discharge, he was considered employable by his VA physician. On the other hand, at the time of the VA compensation examination in October 1992, the examiner stated that the veteran's PTSD was "severe" and that he did not appear to be employable at that time. The veteran argues that he is unable to work and some examiners have described him as unemployable. However, further action in this case is necessary in view of the conflicting data recorded on various treatment and examination records. In this regard, the Board observes that in assessing psychiatric impairment the examiner necessarily must rely heavily on the veteran's reported symptoms and his own description of his day to day activities. Thus his credibility assumes special significance. Further it is observed that there have been some inconsistent Axis I diagnoses in the clinical record. In view of VA's duty to assist the veteran in the development of facts pertinent to his claim, 38 U.S.C.A. § 5107(a) (West 1991), and in light of the fact that the veteran has not had a comprehensive VA neuropsychiatric examination since October 1992, the Board finds that additional development is required in this case. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all VA and non-VA mental health providers who have treated him since September 1993. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which are not currently of record, including any pertinent VA outpatient records. 2. The veteran should be requested to provide the address of the Social Security Administration (SSA) office which granted him disability insurance benefits together with the date of the favorable decision. The RO should obtain, through the appropriate office of the SSA, copies of all vocational and medical records which were considered as the basis for the grant of disability insurance benefits as well as a copy of the decision. All records obtained should be associated with the claims file. 3. Thereafter, a social and industrial survey should be undertaken by the RO to clarify the veteran's occupational history and to determine, as best as possible, the work impairment as a result of the manifestations of his service-connected post-traumatic stress disorder. The social worker should elicit and set forth pertinent facts regarding the veteran’s medical history, education and employment history, social adjustment, and current behavior and health. The social worker should offer an assessment of the veteran’s current functioning and identify the conditions which limit his employment opportunities. Any potential employment opportunities should be identified. The claims folder must be made available to the social worker in conjunction with the survey as it contains important historical data. 4. After completion of the above, the veteran should be afforded a thorough psychiatric examination by a board of two psychiatrists, who have not previously examined or treated him, following a thorough review of all the documents in his claims file to determine the extent and severity of his post-traumatic stress disorder. All indicated psychological testing with applicable subscales should be conducted. In view of the conflicting data regarding the veteran's symptoms and extent of impairment, it is essential that all examiners assess the veteran's credibility. To this end, the claims folder must be made available to the examiner(s) prior to the evaluation in order to allow a review of the pertinent historical data contained therein. The examiners should provide the correct diagnoses of any psychiatric disorders found. The examiners should fully describe the functional limitations and degree of impairment resulting solely from the veteran's post-traumatic stress disorder, with particular emphasis on a complete multiaxial diagnoses. If there are multiple psychiatric disorders diagnosed, the examiner should indicate, to the extent possible, the symptoms attributable to each disorder. The examiners must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev., 1987), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. 5. When the above development has been completed, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 6. Then the RO should readjudicate the veteran’s claim. The rating should reflect consideration under all applicable law and regulations, including of 38 C.F.R. §§ 3.321(b)(1) and 4.16(c). If the action taken remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case in which the laws and regulations and reasons and bases for all determinations made are set forth. After providing the veteran and his representative an opportunity to respond to such a supplemental statement of the case, the case should then be returned to the Board for further appellate consideration. By this remand, the Board intimates no opinion, either legal or factual, as to the ultimate outcome warranted in this case. The purposes of this remand are to further develop the record and to afford the veteran due process of law. D. C. SPICKLER BRUCE E. HYMAN N. R. ROBIN FRANK J. FLOWERS JEFF MARTIN E. W. SEERY Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).