BVA9507123 DOCKET NO. 91-21 311 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include post-traumatic stress disorder. 2. Entitlement to a total rating for compensation purposes based on individual unemployability. 3. Entitlement to a special monthly pension based on the need for regular aid and attendance or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active military service from July 1941 to December 1946. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a June 1990 rating decision of the Los Angeles, California Regional Office (hereinafter "the RO") which denied a total rating for compensation purposes based on individual unemployability and a special monthly pension based on the need for regular aid and attendance or at the housebound rate. In October 1991, the Board denied a total rating for compensation purposes based on individual unemployability and a special monthly pension based on the need for regular aid and attendance or at the housebound rate. In October 1992, the United States Court of Veterans Appeals (hereinafter "the Court") vacated the Board's decision and remanded the veteran's appeal to the Board for further development of the record which included obtaining additional private treatment records. In May 1993, the Board remanded the veteran's claim to the RO for additional development of the record. In March 1994, the Board remanded this appeal to the RO for additional action including formal evaluation of the veteran's entitlement to service connection for a psychiatric disorder to include post-traumatic stress disorder. In March 1994, the RO denied service connection for a psychiatric disorder to include post-traumatic stress disorder. The veteran has been represented throughout this appeal by the Disabled American Veterans. The Board notes that service connection for a psychosis for the purpose of treatment or hospitalization was denied in September 1954. Given that the September 1954 rating decision was expressly limited to hospital or treatment purposes it is not a final decision as to service connection and the Board will review the present claim on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in denying service connection for a psychiatric disorder, a total rating for compensation purposes based on individual unemployability and a special monthly pension based on the need for regular aid and attendance or at the housebound rate. He contends that he incurred a chronic psychiatric disability as a consequence of his World War II combat experiences which encompass having been severely wounded by enemy fire. He advances that his service-connected disabilities render him unable to secure and follow any form of substantially gainful employment consistent with his education and occupational experience. He avers further that his current disability picture prevents him from properly providing for his own daily needs. The accredited representative requests that the issues of the veteran's entitlement to a total rating and a special monthly pension be held in abeyance until the resolution of the issue of service connection for a psychiatric disorder and then remanded to the RO so that the veteran may advance further argument in support of his claim. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that the record supports the allowance of service connection for an anxiety disorder. For the reasons and bases discussed below, the issues of the veteran's entitlement to a total rating for compensation purposes based on individual unemployability and a special monthly pension based on the need for regular aid and attendance or at the housebound rate are remanded to the RO for further action. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal as to the issue of service connection for a psychiatric disorder. 2. The veteran's anxiety disorder cannot be etiologically disassociated from his period of wartime service. CONCLUSION OF LAW An anxiety disorder was incurred during wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim for service connection for a psychiatric disorder is plausible and that all relevant facts have been properly developed. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). The veteran's service medical records do not refer to either a psychiatric disorder or complaints or findings associated with such a disability. The documentation does indicate that the veteran was struck by a shell fragment in the right hip during combat in January 1945. He sustained a severe penetrating right hip wound and a comminuted, compound fracture of the right iliac crest. At a June 1948 VA examination for compensation purposes, the veteran complained of constant pain and irritability associated with his service-connected shell fragment wound residuals. The examiner observed that the veteran appeared to be slightly tense and apprehensive. The veteran was diagnosed as suffering from an anxiety reaction manifested by difficulty in concentration, restlessness and irritability. The VA physician commented that the veteran's anxiety reaction was secondary to his right hip shell fragment wound residuals. A June 1948 statement from Martin A. Zionts, M.D., conveys that the veteran's orthopedic complaints caused him to be nervous and irritable. Dr. Zionts diagnosed the veteran as suffering from a severe chronic anxiety state. A September 1954 statement from James K. Peden, M.D., notes that the veteran had become suspicious, cynical, confused and unable to get along with others in approximately 1952. Dr. Peden diagnosed the veteran as suffering from a chronic paranoid-type schizophrenic reaction. An October 1974 treatment record from the Friendly Hills Medical Group indicates that the veteran's brother related that the veteran had sustained a "nervous breakdown" in 1952. A December 1978 VA neurological evaluation report notes that the veteran was found to be well-oriented and anxious. The examiner commented that there was a "great deal of anxiety in this patient." At an April 1980 VA examination for compensation purposes, the veteran complained of his "nerves being upset" by episodes of dizziness, blurred vision and feeling faint. He related that the episodes began when he was wounded during World War II. On examination, the veteran exhibited general tension with some anxiety; a generally appropriate affect and facial tics. A diagnosis of an anxiety neurosis with episodic anxiety attacks was advanced. A December 1986 VA psychological evaluation and associated treatment records convey that the veteran complained of experiencing chronic pain associated with his service-connected shell fragment wound residuals. An impression of chronic pain syndrome with anxiety features was advanced. At a January 1990 VA examination for compensation purposes, the veteran complained of "nerves," "dreams," and being upset. On mental status examination, the veteran was found to be alert and approximately oriented. The VA examiner commented that: the veteran was unable to relate what he meant by his complaint of "nerves;" a review of the veteran's claims file failed to show any reference to anxiety; and the veteran exhibited no anxiety during the course of the evaluation. At the June 1993 VA examination for compensation purposes, the veteran complained of World War II-related flashbacks and nightmares; nervousness; insomnia and emotional lability. On examination, the veteran was found to be oriented to person, place and time. He exhibited an appropriate affect; an anxious mood; diminished attention and concentration spans; and nervous ticks, hand twitches and facial grimacing indicative of a heightened state of anxiety. The veteran was diagnosed as suffering from "an anxiety disorder secondary to PTSD traumatic events and World War II." Multiple written statements from the veteran convey that he suffers from chronic World War II-related flashbacks, nightmares and dreams; impaired sleep; worry; "nerves" and an upset stomach. The Board has reviewed the probative evidence of record including the veteran's argument on appeal. The veteran has repeatedly been diagnosed by VA and private physicians as suffering from an anxiety disorder which has its origins in his period of active military service. While acknowledging that the report of the January 1990 VA examination for compensation purposes expressly states that the veteran's clinical records showed no history of an anxiety disorder and he did not currently exhibit such a disability, the Board observes that the examiner's conclusions are belied by his failure to note the diagnoses of an anxiety disorder in 1948, 1978, 1980 and 1986. As the clinical record establishes that the veteran suffers from a chronic anxiety disorder which originated during his period of active military service, the Board concludes that service connection is warranted. There is no objective evidence establishing that the veteran currently suffers from post-traumatic stress disorder itself. Accordingly, service connection for an anxiety disorder is granted. ORDER Service connection for an anxiety disorder is granted. REMAND The Board observes that the veteran's entitlement to a total rating for compensation purposes based on individual unemployability and a special monthly pension based on the need for regular aid and attendance or at the housebound rate is to be determined upon an accurate assessment of the current level of disability associated with his service-connected and nonservice-connected disorders. In light of the grant above of service connection for an anxiety disorder, the RO should reevaluated the veteran's entitlement to a total rating for compensation purposes based on individual unemployability. In reviewing the claims file, the Board observes further that a December 1981 Social Security Administration award letter indicates that the veteran was in receipt of benefits. The documentation supporting such an award is not of record. The Court has held that the VA's statutory duty to assist the veteran includes an obligation to obtain the records upon which Social Security Administration disability benefits have been awarded to the veteran. Masors v. Derwinski, 2 Vet.App. 181, 187-188 (1992). In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the United States Court of Veterans Appeals (hereinafter "the Court") in Masors and Littke v. Derwinski, 1 Vet.App. 90, 92- 93 (1990), this case is REMANDED for the following action: 1. The RO should contact the Social Security Administration and request that it provide documentation of the veteran's current disability benefits, if any, and any records developed in association with the award of such benefits. Upon receipt of the request information, it should be incorporated into the record. 2. The RO should then reevaluate the veteran's entitlement to a total rating for compensation purposes based on individual unemployability based on individual and a special monthly pension based on the need for regular aid and attendance or at the housebound rate in light of the allowance of service connection for an anxiety disorder. When the requested action has been completed, and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to the supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record and due process of law. No inference should be drawn from it regarding the final disposition of the veteran's claim. E. W. SEERY 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 Next Page) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board is appealable to the Court. 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).