Citation Nr: 0006383 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-16 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether the claim for service connection for Hepatitis C is well grounded. 2. Entitlement to an initial disability rating in excess of 50 percent post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. Bohanan, Counsel REMAND The appellant served on active duty from June 1960 to May 1972. This appeal arises from a September 1998, Department of Veterans Affairs Regional Office (VARO), No. Little Rock, Arkansas rating decision, which granted service connection for PTSD and assigned a 50 percent disability rating from November 17, 1997; a temporary total rating based on hospitalization, under 38 C.F.R. § 4.29, was made effective July 6, 199; and a 50 percent schedular rating was resumed effective September 1, 1998. That rating action also denied service connection for Hepatitis C. There is a distinction between a claim based on disagreement with the original rating awarded (where service connection is first granted and an initial rating, or ratings over different time frames, is assigned) and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). In an increased rating claim "the present level of disability is of primary importance." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). On the other hand, the September 1998 rating decision that granted service connection for PTSD considered all the evidence of record in assigning the original disability rating. Thus the principle in Francisco, id., is not applicable in claims based on disagreement with the original rating awarded. See Fenderson, 12 Vet. App. 119, 126 (1999). Moreover, with an initial rating, the RO can assign separate disability ratings for varying periods of time based on the facts found, a practice known as 'staged' ratings. Fenderson, 12 Vet. App. 119, 126 (1999). For example, temporary total rating under 38 C.F.R. §§ 4.29 (based on hospitalization) and 4.30 (based on convalescence) (1999) may be terminated without application of 38 C.F.R. § 3.105(e) requiring notice and a delay in implementation of a proposed rating reduction. Here, the September 1998 rating decision that granted service connection for PTSD considered all the evidence of record in assigning the original disability rating and assigned a temporary total rating under 38 C.F.R. § 4.29 (1999) based on hospitalization from July 6, 1998 until the 50 percent schedular rating was resumed on September 1, 1998. Accordingly, all evidence must be considered in determining the appropriate evaluation, including consideration of whether staged ratings are appropriate. The veteran has been provided appropriate notice of the pertinent laws and regulations and has had his claim of disagreement with the original rating properly considered based on all the evidence of record. Thus, the RO complied with the substantive tenets of Fenderson in its adjudication of the veteran's claim. The Board has recharacterized the issue on appeal in order to comply with the recent opinion in Fenderson v. West, 12 Vet. App. 119 (1999). The appellant's pleadings clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Thus, the Board sees no prejudice to the veteran in characterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned to his service- connected PTSD. See Bernard v. Brown, 4 Vet. App. 384 (1993). This case must be remanded for due process reasons inasmuch at the veteran's attorney, in a January 1999 letter, requested that the veteran be afforded an additional personal hearing and a VA psychiatric rating examination. VA has a duty to assist the veteran in the development of all facts pertinent to a well grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). This includes the duty to obtain VA examinations which provide an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records referred to by the veteran. While the claim for an initial disability rating in excess of 50 percent PTSD is well grounded, the Board specifically withholds adjudication of the claim for service connection for Hepatitis C to determine in order to determine whether there are any VA clinical records pertaining to this disability which are not on file. At the December 1998 RO hearing the veteran testified that he had been told when treated in Vietnam for a high fever that he had hepatitis, and he was again treated for a high fever during service in Germany. He testified that within about a year after service blood that he had tried to donate had been rejected due to hepatitis. This was at the United Way in Dubuque, Iowa (pages 23 and 24 of the transcript). He also testified that over the years he had been treated at several VA medical facilities in California and Texas, including at Waco, Texas. However, he did not specify the dates and places of such VA treatment. Under the holding in Bell v. Derwinski, 2 Vet. App. 611 (1992) VA records, even if not on file as in this case, are constructive in the possession of VA. However, the duty to assist is not a one-way street. When necessary or requested the veteran must cooperate with the VA in obtaining evidence. If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (reconsideration denied, 1 Vet. App. 406 (1991)). Accordingly, the veteran should be requested to provide the dates and places of VA treatment for Hepatitis C, since these records are constructively in VA possession. Also, in an October 1998 letter the veteran's attorney requested that he be afforded a copy of the July 22, 1998 VA examination but the record does not reflect that this was done. Similarly, under 38 U.S.C.A. § 5103(a) (West 1991) the VA is under a duty to inform an appellant of the evidence necessary to establish a well grounded claim. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) and Graves v. Brown, 8 Vet. App. 522, 524 (1996). Here, there is evidence that the veteran now has Hepatitis but, with respect to the claim being well grounded, there is no competent medical evidence that he had Hepatitis C during service or shortly thereafter or that his current Hepatitis C is related to his military service. Generally see Caluza v. Brown, 7 Vet. App.498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)) (for a claim of direct service connection to be well grounded there must be (1) a medical diagnosis of current disability; (2) medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice disability and the current disability). Thus, the veteran and his attorney are advised that records pertaining to the veteran's having been rejected for blood donation due to hepatitis shortly after service at the United Way in Dubuque, Iowa should be submitted, together with any other relevant evidence pertaining to incurrence of Hepatitis C during service, it's presence shortly after service, and records which relates Hepatitis C to the veteran's period of military service. The evidence of record includes a May 1999 notice of a decision granting entitlement to disability benefits from the Social Security Administration (SSA). Records pertaining to the award of such benefits by the SSA, particularly a February 1999 Consultative Examination Report, have not been associated with the record. Such records may be of significant probative value in determining whether a higher rating for PTSD may be assigned. Thus, VARO must request complete copies of the SSA records utilized in awarding the appellant disability benefits. Lind v. Principi, 3 Vet. App. 493, 494 (1992). In light of the need to remand for a hearing, additional records which may be in the constructive possession of VA as to the claim for service connection for Hepatitis C, the issue of whether this claim is well grounded will be deferred pending completion of further development. Accordingly, the case is REMANDED for the following: 1. VARO should attempt to procure the appellant's complete SSA records, particularly the February 1999 Consultative Examination Report referenced in its May 1999 notice in connection with his disability award there. These records should be associated with the appellant's VA claims folder. 2. VARO should also request all records pertinent to the appellant's claim from the VA medical center in No. Little Rock, Arkansas. Any records so obtained should then be associated with the appellant's claims folder. 3. The RO should contact the veteran and his attorney and request that they provide all dates and places of VA treatment for Hepatitis C with as much specificity as possible. The RO should then obtain those records which should be associated with the claim file. 4. The veteran's attorney should be provided a copy of the July 22, 1998 VA examination report, as requested. 5. The RO should arrange for the veteran an additional opportunity to testify at an RO hearing in support of his claims. 6. The veteran should be afforded a VA psychiatric examination to determine the extent and severity of his service-connected psychiatric disorder. All necessary tests, including psychological testing if deemed necessary, should be conducted, and the examiner should review the results of any testing prior to completion of the report. The report of examination should specifically describe the level of impairment of the veteran's social and industrial adaptability, caused by his service-connected psychiatric disorder. In addition, the examiner should assign a Global Assessment of Functioning (GAF) score consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The examiner must provide a definition of the score assigned, and should indicate the degree of impairment it represents. The report should contain complete and detailed rationale for all opinions expressed. The claims folder and a copy of this remand should be made available and reviewed by the examiner prior to the examination of the veteran. The examiner is also requested to evaluate and describe in detail the effect the veteran's service-connected psychiatric disorder may have on his industrial capability. The examiner should review the veteran's entire medical history, prior to offering an assessment of industrial and social impairment directly due to psychiatric disability. The examiner should render an opinion whether the service-connected psychiatric disorder prevents employment. The report of the examination should include a complete rationale for all opinions expressed. 7. 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, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the reports must be returned 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); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 8. VARO should then readjudicate the issues on appeal with consideration of the additional evidence. The RO should consider whether staged ratings for the service-connected PTSD are appropriate. If upon readjudication, the claim for service connection for Hepatitis C is determined to be well grounded, the veteran must be afforded to duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). If the claims continue to be denied, the veteran and his attorney should be furnished an appropriate supplemental statement of the case (SSOC) and they should be afforded an opportunity thereto. Thereafter, the case should be returned to the Board. This is to put the veteran on notice, and in keeping with the VA's duty to assist, as announced in Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991), that at least in part the purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to cooperate by attending the requested VA examination may result in an adverse determination. The purpose of the REMAND is to procure clarifying data and to satisfy due process requirements. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. JOHN FUSSELL 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).