BVA9507883 DOCKET NO. 92-02 810 ) 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 evaluation for psychological factors (anxiety and depression) affecting a physical condition (gastrointestinal disorder), currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael A. Pappas, Associate Counsel INTRODUCTION The appellant served on active duty from May 1942 to November 1945. When this matter last came before the Board of Veterans' Appeals (the Board) in September 1992, it was remanded to the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO) for additional development. Following the completion of the requested development, the RO continued the denial of the appellant's claim for an increased evaluation, in excess of 50 percent, for psychological factors (anxiety and depression) affecting physical condition (gastrointestinal disorder), formerly characterized as psychophysiologic gastrointestinal reaction. The appeal was returned to the Board in March 1995. The appellant has been represented throughout his appeal by the Puerto Rico Public Advocate for Veterans Affairs. The September 1992 remand noted that the appellant had previously raised the issues of service connection for a back condition; a sciatic nerve condition; pain in the legs, arms and shoulder; peripheral vascular disease; degenerative joint disease; spondylosis; and degenerative disc disease, on both a direct incurrence and on a secondary basis. The Board also noted that it did not have jurisdiction over those issues since they had not been adjudicated by the RO. Inasmuch as those issues still have not been adjudicated, they are referred again to the RO for appropriate action. REMAND In the course of the development of the appellant's case, he submitted to the RO a letter, dated September 6, 1994, from N. Rodriguez Nieves, M. D., a psychiatrist in Puerto Rico. Dr. Nieves opined in the letter that the appellant was considered totally psychiatrically disabled and unemployable. The letter provided no underlying basis for that conclusion and did not indicate whether Dr. Nieves is the appellant's treating psychiatrist. It is also noted that at the time of the last VA compensation examination, the examining psychiatrist did not report a Global Assessment of Functioning Score. The VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994) This duty includes assisting the appellant in securing clinical and treatment records when the appellant asserts that such records exist, or the possibility of their existence is discovered in the course of the appeal, and obtaining additional VA examination by a specialist when deemed advisable. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Littke v. Derwinski, 1 Vet.App. 90 (1990). Obtaining information as to the basis for Dr. Nieves' opinion, any medical records relied upon by Dr. Nieves, and a VA assessment of the veteran's current psychiatric status and his social and occupational functioning would be pertinent to his claim. Under the circumstances of this case, the Board is of the opinion that additional development is required. The case is remanded to the RO for the following: 1. Although it appears that the veteran is claiming a total rating due to his service connected psychiatric disorder and the provisions of 38 C.F.R. 4.16(c) were given in the last statement of the case, that issue was not certified to the Board. The RO should determine whether the veteran is pursuing his appeal for a total rating based on unemployability. 2. Any recent VA medical evidence regarding the service-connected disability, not currently on file, should be added to the claims folder. 3. The appellant should be asked to authorize the release of any of his medical records in the possession of Dr. N. Rodriguez Nieves, M. D., a psychiatrist in Bayamon, Puerto Rico. Dr. Nieves should be asked to provide copies of the appellant's medical records and to explain the basis for his opinion that the appellant was considered totally psychiatrically disabled and unemployable and to identify any documents upon which he relied in forming his opinion. The veteran should also be asked to identify any private physicians by whom he has been treated for gastrointestinal problems during the past few years. The RO should request copies of his records from any identified physicians. Any evidence obtained should be associated with the claims folder. 4. When the above development has been completed to the extent possible, the appellant should be afforded special VA gastrointestinal and psychiatric examinations by a gastroenterologist and a psychiatrist, respectively, who have not previously examined him, if possible, to determine the current status of his service-connected psychological factors affecting physical condition. The claims folder, any information accumulated pursuant to this remand, and a separate copy of the remand, must be made available to the examiners prior to the examinations. The examining psychiatrist should express an opinion as to any Axis I, Axis II, and Axis III diagnoses and assign, both in numerical terms and in terms of the descriptive phrases associated with the numerical assessment, the level of the appellant's psychological, social, and occupational functioning, utilizing the Global Assessment of Functioning Scale of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (Third Edition, Revised, 1987) (DSM-III-R). 4. When this development has been completed, the RO should review the appellant's claim for an increased evaluation for service-connected psychological factors (anxiety and depression) affecting a physical condition (gastrointestinal disorder), currently rated as 50 percent disabling and a total rating based on unemployability, if appropriate. If the veteran is seeking unemployability benefits and the rating for his psychiatric disorder remains at 50 percent, the provisions of 38 C.F.R. § 4.16(a) and (b) must be considered. If any benefit sought remains denied, the appellant and his representative should be provided by the RO with a supplemental statement of the case addressing the appropriate laws and regulations and reasons and bases of the decision. After they have had an opportunity to respond, the case should be returned to the Board. No action by the appellant is required until he receives further notice. The purpose of this remand is to ensure due process, and assist the appellant in the development of his claim. JANE E. SHARP 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. (Continued on next page) 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).