BVA9500855 DOCKET NO. 90-43 130 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased rating for post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. WITNESSES AT HEARING ON APPEAL The appellant and his mother ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from February 1968 to February 1970. This appeal arises from an October 1989 rating decision of the San Juan, Puerto Rico, Regional Office (RO). The case was remanded by the Board of Veterans' Appeals (Board) to the RO in July 1991 for due process reasons, and in November 1992 for additional development of the evidence and for due process reasons. In a written statement submitted in April 1993, the veteran affirmatively withdrew the issue of entitlement to a permanent and total disability rating for pension purposes. In an August 1994 statement, the veteran's representative raised the issue of entitlement to non service connected pension benefits; accordingly, the RO should clarify whether the veteran intends to pursue a pension claim. In August 1994, the representative also raised the issue of entitlement to a total disability rating based on individual unemployability due to service connected disability; however, as that issue has not been developed or certified on appeal, and as it is not inextricably intertwined with the issue currently before the Board, it is referred to the RO for appropriate consideration. Harris v. Derwinski, 1 Vet.App. 180 (1991). In addition, it is noted that the appellant had been represented by an attorney during the course of the appeal; however, in December 1994 the appellant submitted a letter revoking his power of attorney. Accordingly, at this time he is deemed to be representing himself. REMAND The veteran contends that his psychoneurotic disorder has increased in severity and warrants a higher evaluation. Of record is a September 1990 decision of the Social Security Administration (SSA) which awarded disability benefits to the veteran; however, most of the records upon which that decision was based have not been obtained. Masors v. Derwinski, 2 Vet.App. 181 (1992), mandates that the Department of Veterans Affairs (VA) must obtain the records upon which a SSA disability decision was based. VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). An April 1994 report from Rafael Baez, M.D., indicates that he had been treating the veteran under a fee basis program since April 1993; however, Dr. Baez's underlying treatment records are not of record. In addition, the veteran's VA vocational rehabilitation file should be obtained and associated with the claims folder. The duty to assist also includes, when appropriate, the duty to conduct 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). This is to ensure that the evaluation of a disability is a fully informed one. Following the gathering of all available records, the veteran should be afforded a VA special examination in psychiatry. The Board also notes that the representative raised the issue of service connection for substance abuse as being secondary to the service connected PTSD in the August 1994 statement. As the resolution of the secondary service connection issue could have a substantial impact on the issue currently before the Board, those issues are inextricably intertwined, and the additional issue must be addressed prior to further adjudication. Harris v. Derwinski, 1 Vet.App. 180 (1991) Finally, 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. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Under the circumstances of this case, the Board finds that further assistance is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and obtain the names and addresses of all mental health care providers where he has received treatment for his psychoneurotic disorder in recent years. Thereafter, the RO should obtain legible copies of all treatment records which have not already been obtained to include those from the Ponce VA outpatient clinic from January 1993 to the present, and from Rafael Baez, M.D., from April 1993 to the present. In addition, the RO should obtain the veteran's VA vocational rehabilitation folder. Once obtained, all records must be associated with the claims folder. 2. The RO should contact the SSA and obtain legible copies of all medical records upon which the September 1990 decision awarding SSA disability benefits to the veteran was based. All records, once obtained, must be associated with the claims folder. 3. Following completion of the above developments, the veteran should be afforded a VA special examination in psychiatry to determine the nature and extent of all disability present. All indicated tests should be accomplished, and it is imperative that the physician reviews the entire claims folder prior to the examination so that all disability may be viewed in relation to its history. The examiner should express opinions, to the extent feasible, as to whether the veteran's substance abuse is etiologically related to his service connected PTSD and as to the effect of the psychiatric disability on the veteran's industrial adaptability. The factors upon which the medical opinions are based must be set forth. 4. When the above developments have been completed, the case should again be reviewed by the RO with specific consideration being given to the question of service connection for substance abuse. If the decision on this issue is adverse to the veteran, he should be provided with notice of the adverse decision and his appellate rights. If the claim for an increased rating is denied, the veteran should be provided with a supplemental statement of the case. He should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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) (1993).