BVA9507963 DOCKET NO. 93-12 690 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an increased evaluation for schizophrenia, currently evaluated as 70 percent disabling, to include consideration of a total compensation rating based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her husband ATTORNEY FOR THE BOARD Lois N. Petzold, Associate Counsel INTRODUCTION The veteran had active service from November 1969 to February 1970. This appeal arises from a January 1992 rating decision of the Des Moines, Iowa, Regional Office (RO), which confirmed the current 70 percent evaluation for a psychiatric disability and denied entitlement to a total compensation rating based on individual unemployability. A hearing was held in May 1993, at the RO before C.W. Symanski, who is the member of the Board of Veterans' Appeals (Board)rendering the decision in this case and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b)(West 1991).. REMAND The veteran asserts that her service connected psychiatric disability is more disabling than currently evaluated. She further contends that it has rendered her unable to secure or follow a substantially gainful occupation, thus warranting assignment of a total disability rating based on individual unemployability under the provisions of 38 C.F.R. §4.16(c). The VA has a duty to assist the veteran in the development of facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (the Court) has held that the duty to assist the veteran in developing available facts and evidence to support her claim includes obtaining available medical records which are relevant to the claimant's appeal and obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). In the case of Ivey v. Derwinski, 2 Vet.App. 320 (1992), the Court stated that even when the appellant did not request that pertinent medical records be obtained, when a claimant puts the VA on notice that such records exist, then the VA's duty to assist the claimant in developing a claim is triggered. In the case at hand, the veteran testified at a May 1993 travel board hearing that she receives treatment for her psychiatric disability every three months at the Iowa City VA. However, the last treatment records associated with the claims folder are dated in September 1991. The RO must attempt to secure all of the veteran's treatment records since that time. Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). The severity of psychiatric disability is based upon actual symptomatology as it affects social and industrial adaptability. See 38 C.F.R. §§ 4.129, 4.130 (1994). In the instant claim, although the veteran failed to report for a scheduled VA examination in November 1991, the notice of this examination was sent to State Central Bank as the veteran's conservator. The question arises as to whether she got notice of that examination. claims folder evidences that she has always reported for numerous VA examinations throughout the years: accordingly she should be given another opportunity to appear for a special VA psychiatric examination once her medical records have been obtained. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. In order to comply with the Court mandates discussed above, the Board finds that additional assistance is required. The case is REMANDED to the RO for action as follows: 1. The RO should obtain copies of all of the veteran's treatment records from the Iowa City VA from September 1991 to the present and associate them with the claims folder. 2. Following completion of the above development, arrangements should be made to have the veteran afforded a comprehensive VA psychiatric examination to determine the nature and extent of the disability present. (Notice of the examination should be sent to the appellant at her latest address of record ,currently Rural Route 2, Box 250, Aledo, Illinois 61231). This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3rd ed. rev., 1987), and explain what the assigned score represents. The disability should be evaluated in relation to its history, with emphasis upon the limitation of activity imposed by the disabling condition in light of the whole recorded history. The factors upon which the medical opinion is based must be set forth. 3. Following completion of the foregoing, 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 contain all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. Thereafter, the claim should be reviewed by the RO. If the claim continues to be denied, the veteran and her representative should be furnished an appropriate supplemental statement of the case, and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration. C.W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1994).