Citation Nr: 0006454 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 96-36 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased disability rating for service- connected posttraumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Fred J. Fleming, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied entitlement to a disability rating in excess of 10 percent for service-connected PTSD. The RO assigned an increased disability rating of 50 percent for this condition in January 1997. In January 1998, the Board remanded the claim to schedule the veteran for a personal hearing before a member of the Board. In April 1998, a hearing was held before the undersigned Board member. 38 U.S.C.A. § 7107(c) (West Supp. 1999). In October 1998, the Board assigned a 70 percent disability rating for PTSD. Entitlement to a 100 percent schedular rating was denied. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court). In July 1999, counsel for the veteran and VA filed a Joint Motion to Vacate and Remand the Board Decision, and to Stay Further Proceedings. An Order of the Court dated in July 1999 granted the joint motion. REMAND In order to ensure proper compliance with the law, applicable regulations, and precedent decisions of the Court, the Board finds that additional development of the evidentiary record is required. The veteran was scheduled for and underwent VA examination in June 1998, prior to the October 1998 Board decision that assigned a 70 percent disability rating for service-connected PTSD. At the time of the October 1998 Board decision, the claims folder did not contain the June 1998 correspondence scheduling the veteran for re-examination or the June 1998 VA examination report. Accordingly, the Board decision does not mention this evidence. In April 1999, the veteran provided his attorney a copy of the June 1998 VA examination report, which was counterdesignated for inclusion in the record in May 1999. In the joint motion, the parties agreed that a remand is required for readjudication, as the Board did not consider this evidence. See Dunn v. West, 11 Vet. App. 462, 466 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). The joint motion also provided that the veteran should be re- examined by VA on remand to ensure that the record adequately reveals the current stated of his service-connected PTSD, as the claims folder was not available for review by the examiner on VA examination in June 1998. See Pond v. West, 12 Vet. App. 341 (1999) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Further, any recent medical records showing treatment for PTSD may prove relevant to the claim and should be obtained on remand. In January 2000, the veteran submitted a copy of the June 1998 VA examination report to the Board. The report included an additional notation by the VA examiner that conducted the examination. The veteran has not waived the RO's consideration of this evidence. To the contrary, his attorney has specifically requested that the case be remanded to allow the RO to consider this evidence. Therefore, in accordance with 38 C.F.R. § 20.1304(c) (1999), the case is returned to the RO. Finally, once all development has taken place, the RO must readjudicate this claim, giving consideration to the fact that the rating criteria for evaluating mental disorders have changed during the pendency of this claim (effective November 7, 1996). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, the amended regulations are not for consideration prior to the established effective date. See Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Therefore, the RO must evaluate the veteran's claim for a higher evaluation from November 7, 1996, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to the veteran, if indeed one is more favorable than the other. Therefore, this case is REMANDED for the following: 1. The RO should request that the veteran provide a list of those who have treated him for his service-connected PTSD since 1996 and obtain all records of any treatment reported by the veteran that are not already in the claims file. The Board is particularly interested in any treatment received at the Columbus, Georgia; Tuskegee, Alabama; and Montgomery, Alabama, VA Medical Centers (VAMCs). With respect to the VAMCs, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. If any requests for private treatment records are not successful, the veteran and his attorney should be advised of this and given the opportunity to obtain and submit the records, in keeping with the veteran's responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159(c). 2. After obtaining as many of the above records as possible, the RO should afford the veteran a VA mental disorders examination. The examiner should be provided a copy of this remand and the veteran's entire claims folder. The examiner is asked to indicate that he or she has reviewed this material in its entirety. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Following examination of the veteran, the examiner should indicate the exact diagnosis or diagnoses of the veteran's psychiatric disorder(s), and should identify what symptoms, if any, the veteran currently manifests or has manifested in the recent past that are attributable to his service-connected PTSD. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the veteran's PTSD on his social and industrial adaptability, as opposed to any nonservice-connected psychiatric disorders. In so doing, the examiner is asked to address his or her findings in the context of the veteran's work history. The examiner should assign a Global Assessment of Functioning (GAF) score for the veteran's service-connected PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and provide a definition of the score assigned. If it is not possible to assign a GAF score on the basis of the veteran's PTSD alone, the examiner is asked to so state. The examiner should distinguish between symptomatology resulting from the veteran's service-connected PTSD and any other nonservice-connected psychiatric disorders shown by the medical evidence, i.e., paranoid personality, dysthymic disorder. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should specifically state so in the examination report. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. If further testing or examination by other specialists is determined to be warranted for evaluation of the condition at issue, such testing or examination is to be accomplished. 3. The RO should review the claims folder and ensure that all of the foregoing development is completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the requested examination does not include adequate responses to the specific opinions requested, the report must be returned to the physician for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. The veteran is hereby informed that he is free to submit additional evidence or argument while the case is on remand. Quarles v. Derwinski, 3 Vet. App. 129 (1992); and Kutscherousky v. West, 12 Vet. App. 369 (1999). 5. The RO should readjudicate the veteran's claim on appeal, with application of all appropriate laws, regulations and diagnostic codes, and consideration of any additional information obtained as a result of this remand, including the VA examination. The RO should consider carefully and with heighten mindfulness the benefit of the doubt rule, if applicable. 38 U.S.C.A. § 5107(b). If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). The RO should also give due consideration to the effect of the revised criteria for evaluating mental disorders, effective November 7, 1996, and consider whether the old or new criteria are more favorable to the veteran, pursuant to Karnas v. Derwinski, 1 Vet. App. 308 (1991) and Green v. Brown, 10 Vet. App. 111 (1997). Then, if the decision with respect to the claim remains adverse to the veteran, he and his attorney should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. Then, the claims folder should be returned to the Board for further appellate consideration. The veteran need take no action until he is so informed. The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. 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. JOAQUIN AGUAYO-PERELES 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).