Citation Nr: 0001661 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 96-33 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. 2. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and spouse. ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from January 1971 to October 1973 and from March 1975 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. During his February 1997 personal hearing, the veteran testified that a physician had told him he had seizures because of his PTSD. He further testified that he had hypertension and was taking heart medications because he was stressed out. If the veteran is seeking service connection for these disabilities, he should inform the RO, which should respond appropriately to any clarification provided by the veteran. REMAND A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring the VA fulfill the statutorily required duty to assist 38 U.S.C.A. § 5107(a) (West 1991) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). During his September 1999 video conference hearing before the undersigned, the veteran testified that he was last hospitalized for his PTSD in August 1999 at VA and that he had been seeing a private psychologist once a week on a fee- basis for three months for treatment of his PTSD. The evidence of record also shows that the veteran had ongoing treatment at the Vet Center in Grand Rapids, Michigan. These relevant treatment records are not of record. The United States Court of Claims for Veterans Appeals (Court) has held that where "relevant" documents relating to an appellant's claim were within the Secretary's control (for example, records generated by VA) prior to a Board decision on appeal and could reasonably be expected to be part of the record before VA, such documents are "in contemplation of law" constructively part of the record. Blount v. West, 11 Vet. App. 32, 33 (1998); Simington v. Brown, 9 Vet. App. 334, 335 (1996); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Under the circumstances, development to obtain this additional evidence is in order prior to a Board determination on the veteran's claims. In November 1996, during the pendency of this appeal, the criteria for rating psychiatric disorders were revised. Where the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply. Karnas v. Derwinski, 1 Vet.App. 308 (1991). At the time of the veteran's April 1997 VA psychiatric examination, the examiner opined that the veteran's inability or unwillingness to function occupationally was related to his basic personality structure plus the chronic effect of his multiple substance abuse. The examiner further opined that the veteran's PTSD symptoms were fueled and exacerbated through the continuous use of all these substances. The examiner diagnosed Axis I, chronic mood disorder related to continuous substance abuse, chronic tobacco use, and a history of PTSD. Axis II diagnoses were paranoid and antisocial personality traits. The veteran had an overall Global Assessment of Functioning (GAF) score of 65. However, the examiner did not indicate what was the veteran's level of impairment specifically attributed to his PTSD, the only disability that is service-connected. The Court has held that, under 38 U.S.C.A. § 5107(a) (West 1991), VA's duty to assist a veteran in obtaining and developing available facts and evidence to support a claim includes obtaining an adequate and contemporaneous VA examination which takes into account the records of prior medical treatment. Littke v. Derwinski, 1 Vet. App. 90 (1990). In light of the foregoing circumstances, the case is REMANDED to the RO for the following actions: 1. The RO should obtain all inpatient and outpatient treatment records for the veteran from the VA Medical Centers in Battle Creek and Grand Rapids, Michigan, dated from October 1997 to the present. The RO should also obtain all the veteran's available treatment records from the Vet Center in Grand Rapids, Michigan. 2. The RO should contact the veteran and request that he identify specific names, addresses and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claims. Then with any necessary authorization from the veteran, the RO should attempt to obtain copies of all treatment records identified by the veteran which have not been previously secured, to include 1999 treatment records from his fee-basis psychologist. 3. After the above development has been completed, but in any event, the RO should schedule the veteran for a VA psychiatric examination by a psychiatrist in order to determine the manifestations of the service-connected PTSD. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the psychiatrist), should be conducted in order to identify and describe the symptomatology attributable to PTSD. The report of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner must also comment on the extent to which the veteran's service-connected PTSD affects occupational and social functioning. The examiner referred to the criteria for PTSD in effect prior and subsequent to November 1996. After reviewing the criteria, the psychiatrist is asked to express an opinion as to which of the criteria best describe the veteran's psychiatric disability picture due solely to PTSD. An explanation for the selection of a particular criterion is to be expressed in the opinion. A multi-axial assessment should be conducted, and a thorough discussion of Axis IV (psychosocial and environmental problems) and Axis V (Global Assessment of Functioning (GAF) score), with an explanation of the numeric code assigned, is to be included. The claims folders with a copy of this remand must be made available to the physician for review in conjunction with the examination. 4. Thereafter, the RO should undertake any other development deemed necessary and readjudicate the veteran's appealed claims. If the benefits sought on appeal are not granted to the veteran's satisfaction a supplemental statement of the case containing adequate reasons and bases should be issued and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1998).