Citation Nr: 0004409 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-02 148 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Evaluation of an adjustment disorder and post-traumatic stress disorder (PTSD), evaluated as 30 percent disabling from February 1, 1997. REPRESENTATION Appellant represented by: Fleet Reserve Association ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from February 1996 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the Oakland, California RO that, among other things, granted a claim of entitlement to service connection for an adjustment disorder and assigned a 10 percent evaluation, effective from the day following the veteran's separation from service- February 1, 1997. By rating action of December 1997, the RO increased the rating for the adjustment disorder from 10 to 30 percent, effective from February 1, 1997. In August 1998, the veteran provided his new address in West Virginia and jurisdiction of his claims file was transferred to the Huntington, West Virginia, RO. On the title page of a March 1999 supplemental statement of the case (SSOC), the RO listed the issue as "[e]valuation of adjustment disorder with mixed emotional features (now diagnosed as post-traumatic stress disorder) . . ." No previous rating action had addressed the question of service connection for PTSD. Nevertheless, given the concession made in the March 1999 SSOC that the service-connected disability contemplated PTSD, as well as any adjustment disorder, the Board finds that the RO has included PTSD as part of the veteran's service-connected disability. The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) recently held that an appeal from an original rating does not raise the question of entitlement to an increased rating, but instead is an appeal of an original award. Fenderson v. West, 12 Vet. App. 119 (1999). Consequently, the Board has characterized the issue on appeal as a claim for a higher evaluation of an original award. REMAND The medical evidence of record contains conflicting information regarding the nature of the veteran's psychiatric disability and raises certain questions about the application of new rating criteria, see 38 C.F.R. § 4.130 (1999) (effective from November 7, 1996), especially the extent to which service-connected psychiatric disability affects the veteran's employability. A March 1997 VA examination report shows that the veteran was working for a security company. A Global Assessment of Functioning (GAF) score of 65 was assigned. The impression was adjustment disorder with mixed emotional features. A September 1997 VA consultation report shows that the diagnoses included adjustment disorder with mixed disturbance of emotions and conduct, and rule out PTSD. A November 1997 VA progress note shows that the assessment was depressive disorder and rule out possible PTSD. December 1997 VA hospital records reveal that the veteran was a security guard until two months earlier when he was electrocuted at work. The final diagnoses were adjustment disorder with mixed emotions of anger, irritability, and depression. A history of PTSD was also noted. The physician opined that it was doubtful that PTSD was actively part of the veteran's problem at that time. Curiously, shortly after the December 1997 hospitalization, a January 1998 VA progress note shows that the assessments were PTSD, personality disorder, and depressive disorder. A January 1998 VA psychological consultation report shows that a GAF score of 55 was assigned. The impressions were depression and rule out PTSD. A May 1998 VA examination was conducted without review of the claims file. It was noted that the veteran was recovering from electric shocks that he had received while working as a security guard, and that he had not worked since that injury in October 1997. A GAF score of 45 was assigned. The diagnoses were PTSD and depressive disorder secondary to PTSD. The examiner opined that the veteran's history and mental status examination were consistent with a diagnosis of PTSD and depressive disorder, and that the veteran's depressive disorder symptoms were secondary to PTSD. The examiner also explained that that a GAF score between 41 and 50 is consistent with serious symptoms or any serious impairment in social, occupational, or school functioning. A January 1999 VA examination was conducted with review of the claims file. The veteran reported that he had worked as a gas station cashier from July to September 1998. He noted that he was aggressive towards customers and felt that he would be fired, so he quit. Then he worked as a cook from September to November 1998, but was terminated from the job due to lack of experience. At the time of the examination, he was unemployed but actively looking for a job. A GAF score of 45 was assigned. The diagnostic impressions included PTSD and depression secondary to PTSD. Since the medical evidence contains several diagnoses and the recent reports of VA examinations are inadequate to determine to what extent service-connected psychiatric disability affects the veteran's employability, and also raise the question of whether a disorder characterized as depression should be considered part of the service-connected disability, the Board finds that a remand for a new examination is warranted in order to reconcile the seeming conflict between certain findings and conclusions of record. 38 C.F.R. § 19.9 (1999). See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, the issue is REMANDED to the RO for the following: 1. The RO should ask the veteran to provide information regarding any evidence of recent treatment for psychiatric problems that has not already been made part of the record. The RO should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). 2. The RO should then schedule the veteran for a VA psychiatric examination, preferably by a psychiatrist who has not previously examined the veteran, to determine the nature and severity of the service-connected psychiatric disorder. The psychiatrist should review the claims file, examine the veteran, and distinguish between the symptoms due to service-connected disability and those due to any co-existing non-service- connected psychiatric disability, keeping in mind that both an adjustment disorder and PTSD have been included by the RO in the characterization of the service- connected disability, but not depression. If the examiner is unable to disassociate the symptoms of one disorder from those of another, the psychiatrist should so indicate. The psychiatrist should assign a GAF score and explain the significance of the score in terms of social and industrial impairment. Findings necessary to apply the criteria in 38 C.F.R. § 4.130 (1999) should be set forth. The examiner should explain the rationale for all opinions given. 3. The RO should then re-adjudicate the claim. The RO should also consider whether a "staged" rating is appropriate. Fenderson, 12 Vet. App. at 119. If the benefit sought is denied, a SSOC should be issued. The SSOC should contain, among other things, a summary of the evidence received since the last SSOC was issued in March 1999. 38 C.F.R. § 19.31 (1999). If the veteran does not appear for the examination, without good cause, the SSOC should include a reference to the provisions of 38 C.F.R. § 3.655 (1999). After the appellant and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the appellant until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures and obtain clarifying evidence. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 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 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. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).