Citation Nr: 0000080 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 95-16 796A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess 10 percent for post-traumatic stress disorder from February 24, 1994 to May 22, 1998. 2. Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 50 percent disabling. 3. Entitlement to an effective date prior to May 22, 1998, for a 50 percent disability rating for post-traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from March 1968 to March 1970. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in Montgomery, Alabama (hereinafter RO). In the veteran's substantive appeal received in June 1999, the veteran raised the issue of entitlement to service connection for a sleep disorder, secondary to his service-connected post-traumatic stress disorder. Additionally, the veteran's representative raised the issue of entitlement to service connection for rheumatoid arthritis, secondary to the veteran's service-connected post-traumatic stress disorder, entitlement to a total rating for compensation purposes based upon individual unemployability, and entitlement to special monthly compensation. These issues have not yet been developed for appellate review, and are therefore referred to the RO for appropriate disposition. REMAND The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). The United States Court of Appeals for Veterans Claims (hereinafter Court) has held that "[w]here, as here, the record before the [Board] was clearly inadequate, remand . . . is required." Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). The Court has also held that the "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination. . . ." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Although the veteran was afforded a VA examination in conjunction with his claim for evaluation of his service-connected disability in May 1998, the Board does not find this examination to be adequate for appellate purposes. The veteran's medical records were not available for review, and as such, all available evidence was not considered. Likewise, pertinent facts were neither identified nor evaluated and weighed. The Court has held that the requirement for evaluation of the complete medical history of the veteran's condition operated to protect veterans against an adverse decision based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In West v. Brown, 7 Vet. App. 70 (1994), the Court clearly indicated that the necessity of evaluation of the complete medical history applied not only to adjudicators, but also to examining physicians and that a medical examination that did not reflect reliance upon a complete and accurate history was inadequate for rating purposes and "frustrates effective judicial review." The Board therefore concludes that an additional VA examination is needed to provide an accurate picture of the claimed disability at issue on appeal. 38 C.F.R. §§ 3.326, 3.327 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that the evaluation of the veteran's service-connected post-traumatic stress disorder claim on appeal is based on the assignment of initial rating for a disability following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Id.; Francisco, 7 Vet. App. at 58. Instead, in Fenderson, the Court held that where a veteran appealed the initial rating assigned for a disability, "staged" ratings could be assigned for separate periods of time based on facts found. Fenderson, 12 Vet. App. at 126. The Board has recharacterized the issues on appeal in order to comply with the recent opinion by the Court in Fenderson. The Court held in Fenderson, in pertinent part, that the RO had never properly provided the appellant with a statement of the case concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson v. West, 12 Vet. App. 119 (1999) (emphasis in the original). The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for the issuance of a statement of the case. Id. As in Fenderson, the RO in this case has also misidentified the issues on appeal, to include entitlement to an increased rating for post-traumatic stress disorder, rather than as a disagreement with the original rating award for this disorder. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, this case is remanded to the RO for the following actions: 1. All pertinent VA and private medical treatment records subsequent to May 1998, should be obtained and associated with the claims file. 2. The veteran should be afforded a VA psychiatric examination to determine the extent of his service-connected post-traumatic stress disorder. All pertinent symptomatology and findings should be reported in detail. The RO must furnish the examiner with a copy of the old and revised rating criteria for evaluating psychiatric disorders and request that the examiner comment as to the presence or absence of each symptom and finding required under the rating criteria for ratings from 50 percent to 100 percent, and, where present, the frequency and/or severity of each symptom and finding. The examiner should also assign a Global Assessment of Functioning Scale score and explain what the assigned score means. A complete rationale for any opinion expressed should be included in the examination report. The claims file must be made available to and reviewed by the examiner prior to the requested study and the examination report should reflect that such a review was made. 3. The RO should notify the veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (1999). 4. Following completion of the foregoing, the RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the report does not include a fully detailed description of all pathology or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). "If the [examination] report does not contain sufficient detail it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Green v. Derwinski, 1. Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 5. Thereafter, the RO should adjudicate the issues of entitlement to an initial evaluation in excess 10 percent for post-traumatic stress disorder from February 24, 1994 to May 22, 1998; entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 50 percent disabling; and entitlement to an effective date prior to May 22, 1998, for a 50 percent disability rating for post-traumatic stress disorder. The RO may consider assigning "staged" ratings, if appropriate. See Fenderson, 12 Vet. App. at 126. 6. Thereafter, a supplemental statement of the case should be provided to the veteran and his representative. The supplemental statement of the case should address whether the veteran's claims for increased ratings should be submitted to the Chief Benefits Director or the Director, VA Compensation and Pension Service for assignment of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (1999). After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives. The Court has stated that compliance by the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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 regional offices 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. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOY A. MCDONALD Acting 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) (1999).