Citation Nr: 0002583 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-32 422 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office Center in Togus, Maine THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from July 1968 to July 1969. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of August 1997, by the Medical and Regional Office Center in Togus, Maine (MROC), which denied the veteran's claims of entitlement to an increased rating for PTSD and a total disability rating based upon individual unemployability. The notice of disagreement with this determination was received in August 1997. The statement of the case was issued in September 1997. The substantive appeal was received in October 1997. A VA compensation examination was conducted in January 1998. A social and industrial survey was conducted in February 1999. A supplemental statement of the case was issued in October 1999. The appeal was received at the Board in December 1999. REMAND The veteran and his representative contend that the veteran's service-connected PTSD is so disabling as to warrant a rating in excess of 50 percent, and that it also warrants assignment of a total rating based upon individual unemployability. It is asserted that the requirements are met for a 100 percent disability rating, based upon substantial impairment with reference to relationships; it is further maintained that an extremely severe industrial impairment is illustrated by the veteran's inability to tolerate closeness by anyone, and inability to obtain and retain employment, as well as frequent intrusive thoughts concerning Vietnam. The Board notes that PTSD is the veteran's only service-connected disability. The United States Court of Appeals for Veterans Claims has held that, where an appellant presents a well-grounded claim for benefits, VA has a statutory duty to assist the appellant "in developing the facts pertinent to the claim." 38 U.S.C. § 5107(a); see Patton v. West, 12 Vet.App. 272, 276 (1999), quoting Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). In this case, the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). This finding is based essentially upon the veteran's assertion that his service-connected disability is more severe then previously evaluated. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Of record is a statement from the veteran's representative, dated in May 1997, wherein he indicated that a medical report from a Dr. Rykken was attached to his letter; he noted that the medical report indicated that there was an increase in the severity of the veteran's service-connected PTSD. However, the record does not contain a report from Dr. Rykken. Therefore, the MROC should request a report regarding the veteran from Dr. Rykken; and, if it is not forthcoming, or if the veteran does not authorize its release, the MROC should inform the veteran of the need for him to obtain it. In addition, the duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). Here, the most recent VA psychiatric examination was conducted in January 1998 and it does not appear, from the report of that examination, that the examiner took into account prior treatment records, particularly any records of treatment from Dr. Rykken. Further, a January 1998 VA PTSD examination report noted diagnoses of PTSD, chronic, delayed onset; panic disorder without agoraphobia; alcohol abuse; and cannabis abuse. The GAF score was 55. The examiner stated that, overall, the veteran's GAF score was based on the fact that his PTSD symptoms were having a moderately negative impact on his industrial and social functioning. The examiner noted that, while the veteran was not employed as a full-time worker, he continued to do some work in his private jewelry workshop attached to his home. The examiner also noted that the clinical picture was further complicated by recurrent panic episodes, alcohol and cannabis misuse, and ongoing financial concerns. However, in February 1999, a social and industrial survey indicated that, athough the veteran's history depicted a person with PTSD, his current situation did not. The social worker noted that the veteran still needed treatment for his panic attacks and was followed by Dr. Hussey, and he continued to take Clonazepam and Sertraline as prescribed for his panic attacks. Central to the issue on appeal is the extent to which the veteran's PTSD has impacted his ability to obtain or retain substantially gainful employment. The January 1998 VA examiner addressed the question; however, the examiner indicated that the clinical picture was complicated by recurrent panic episodes, as well as alcohol and cannabis abuse. The Board notes that "no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs." See 38 U.S.C.§§ 105, 1110 (West 1991); 38 C.F.R. § 3.301; VAOPGCPREC 2-97 (Jan. 16, 1997). Hence, it is necessary to ascertain what degree of disability is related to PTSD alone. Accordingly, to ensure that the VA meets its duty to assist the veteran in developing the facts pertinent to his claims, the case is REMANDED to the MROC for the following development: 1. The MROC should obtain all VA treatment records of the veteran, which are not currently of record, and associate them with the claims folder. 2. The MROC should contact the veteran and request him to furnish the full name and current mailing address for Dr. Rykken, and a consent form for the release to VA of the pertinent treatment records of the veteran by Dr. Rykken. Thereafter, the MROC should request copies of all such records which are not currently of record, and associate them with the claims folder. 3. After receiving and associating the above- mentioned records with the claims file, if available, the MROC is requested to arrange to have the claims file and a copy of this REMAND reviewed by the VA psychiatrist (or, if he is unavailable, a suitable substitute) who provided the January 1998 report. After such review of the claims file, the psychiatrist is asked to provide an addendum to the January 1998 report, specifying the presence or absence of specific rating criteria, such as panic attacks, speech impairment, memory loss, impulse control, neglect of personal appearance and hygiene, and ability to adapt to stressful circumstances (to include in a work or work-like setting). The psychiatrist is also asked to render a multi-axial diagnosis, including a global assessment of functioning (GAF) score, and to explain what the GAF score means. The examiner should also offer an opinion as to the relationship between PTSD and each other psychiatric disorder diagnosed, if any. If no relationship is found to exist, the examiner should, to the extent possible, distinguish symptomatology attributable to the veteran's PTSD from any other psychiatric disorder identified. The psychiatrist should offer a more definitive opinion as to whether the veteran's PTSD symptoms alone would prevent him from obtaining or retaining substantially gainful employment and, if so, should provide the complete rationale, to include appropriate reference to other evidence of record, for that determination, in a typewritten report. If necessary for the completion of the above- referenced opinion or if deemed necessary in addition to the above, the psychiatrist may arrange to have the veteran undergo further PTSD examination. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. All examination findings, along with the complete rationale for all opinions expressed and conclusions reached (to include recitation to pertinent medical evidence of record) should be set forth in a typewritten report. 4. Following completion of the foregoing, the MROC should review the claims file to ensure that all of the above mentioned development has been completed in full. If any development is incomplete or deficient in any manner, appropriate corrective action should be undertaken. 5. After ensuring that all requested development has been completed to the extent possible, the MROC should again consider the veteran's claims, to include consideration of both the former and revised applicable criteria, to include 38 C.F.R. § 4.16(c) (1999), as well as consideration of an increased evaluation under 38 C.F.R. § 3.321. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. They should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of him until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested action. The purpose of this REMAND is to assist the veteran in developing his claim. 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. ANDREW J. MULLEN 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).